United States v. Ashburn, 11-CR-0303 (NGG)

UNITED STATES OF AMERICA v. YASSER ASHBURN, JAMAL LAURENT, and TREVELLE MERRITT, Defendants.

11-CR-0303 (NGG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

February 11, 2015

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

I. INTRODUCTION

This Memorandum and Order addresses the Government's Motion in Limine to Admit Evidence of Other Acts. (Mem. in Supp. of Gov't's Mot. to Admit Evid. of Other Acts ("Mot.") (Dkt. 197).) It further addresses a number of motions Defendants have subsequently made in response. For reasons that follow, the Government's motion is GRANTED in part and DENIED in part; Defendants' motions are DENIED, with the exception of Defendant Laurent's motion to further amend a statement that Defendant Merritt made to law enforcement regarding a January 12, 2011, cell phone robbery, which is GRANTED in part and DENIED in part.

A. Background and Indictment

Defendants Yasser Ashburn, Jamal Laurent, and Trevelle Merritt are charged by a fourteen count indictment with numerous racketeering crimes committed in connection with their membership in the Six Tre Outlaw Gangsta Disciples Folk Nation ("Six Tre Folk Nation" or "Six Tre"), which was allegedly responsible for numerous acts of gang-related violence, including homicides, non-fatal shootings, and commercial robberies in Brooklyn and elsewhere beginning in 2007 through 2011. (Superseding Indictment (S-5)¹ (the "Indictment") (Dkt. 271);Mot. at 3.) According to the Government, Six Tre is part of the Folk Nation, a nationwide gang founded in Chicago, Illinois in the early 1990s. (Id. at 2.) The Government also claims that Six Tre has approximately 20 to 25 identified members, and has been operating in and around the Ebbets Field housing projects ("Ebbets Field") in the Flatbush section of Brooklyn, New York for several years. (Id. at 3.)

The Indictment alleges that during those years, members and associates of Six Tre engaged in several acts of violence, including murder, attempted murder, robbery, and assault. (Indictment ¶ 1.) It further alleges that Six Tre constituted an "enterprise" within the meaning of 18 U.S.C. § 1961(4), and functioned as a continuing unit for a common purpose of achieving certain objectives. (See id. ¶ 2.) These objectives allegedly included: (a) promoting and enhancing its reputation with respect to rival criminal organizations; (b) preserving and protecting its power, territory, and criminal ventures; and (c) enriching its members and associates through criminal activity. (Id. ¶ 3.) According to the Indictment, among the means and methods by which the members and associates of Six Tre conducted its affairs were: (1) using and threating to use physical violence to keep victims and rivals in fear of its members and associates; (2) committing, attempting to commit, and threatening to commit acts of violence, including murder, robbery, and assault, to enhance its prestige and expand its criminal operations; and (3) using, attempting to use, and conspiring to use robbery and narcotics trafficking as a means of obtaining money. (Id. ¶ 4.)

Defendants, in particular, are charged with being directly responsible for—among other crimes—three separate murders and two attempted murders, as well as several robberies ofjewelry stores and robberies of individuals solicited via internet marketplaces, between April 2008 and October 2011. (See generally Indictment.) The Indictment charges each Defendant with racketeering (Count One) and racketeering conspiracy (Count Two), on the basis of twelve predicate racketeering acts ("RAs"), and charges each Defendant with the unlawful use of firearms (Count Three) in connection with Counts One and Two. (Id. ¶¶ 7-35.) Defendants are also charged in Counts Four through Fourteen with multiple federal crimes predicated on the same or similar conduct at issue in the racketeering acts.² (Id. ¶¶ 36-50.) Both the alleged racketeering acts and the substantive charges arise from eight primary allegations, which the Indictment sets forth as follows.

First, the Indictment alleges that members of Six Tre, including all three Defendants, conspired to murder members of the rival Crips gang in Brooklyn. (Id. ¶ 9 (RA 1: conspiracy to murder).) Second, Defendant Ashburn is charged with shooting and killing Courtney Robinson on April 20, 2008, when a fight broke out between a Six Tre member and another individual during a party held at an apartment in Ebbets Field, which several Six Tre members attended. (Id. ¶¶ 10 (RA 2: murder), 36-37 (Count Four: murder in-aid-of racketeering).) Third, the Indictment alleges that on June 19, 2010, Defendant Laurent shot and killed Brent Duncan because—according to the Government—he thought that Duncan displayed a Crips hand sign at a party the two attended, although none of Duncan's family or friends knew him to have any association with the Crips. (Id. ¶¶ 12 (RA 4: murder), 39-40 (Count Five: murder in-aid-of racketeering); Mot. at 4-5.)

Fourth, on July 7, 2010, after walking by a Crips member (referred to in the Indictment as John Doe #2)³ on the street, Laurent is alleged to have shot him in the back twice, but the Crips member later recovered from his injuries. (Id. ¶¶ 19 (RA 7: attempted murder), 41-42 (Count Six: assault with a dangerous weapon in-aid-of racketeering), 43 (Count Seven: unlawful use of a firearm); Mot. at 5.) Fifth, the Indictment alleges that Laurent and Merritt conspired to rob Dasta James (also known as "Topes"), who was shot and killed during the course of the robbery on January 28, 2011. (Mot. at 5-6.) According to the Government, after Merritt purchased marijuana from James and stepped away, Laurent pulled out a firearm and demanded that James give him everything in his possession; after James refused and the two fought, Laurent shot James while James was running away and calling for help. (Id.) Only Merritt, however, is explicitly named in the charges associated with James's death.⁴ (Indictment ¶¶ 28-31 (RA 12: robbery conspiracy/attempted robbery/murder), 47 (Count Eleven: Hobbs Act robbery conspiracy), 48 (Count Twelve: attempted Hobbs Act robbery), 49 (Count Thirteen: unlawful use of a firearm), 50 (Count Fourteen: causing death through use of a firearm).)

Sixth, Laurent is charged with committing and conspiring to commit "smash-and-grab" robberies of high-end jewelry stores in Manhattan, New Jersey, Connecticut, and Massachusetts between January 2009 and August 2010, during which he and other Six Tre members smashed display cases with a sledgehammer and then grabbed merchandise from the cases. (See Indictment ¶¶ 11 (RA 3: Hobbs Act robbery conspiracy), 44 (Count Eight: Hobbs Act robberyconspiracy); Mot. at 6.) Seventh, the Indictment charges Laurent with committing and conspiring with other members of Six Tre to commit (see Mot. at 6), a series of robberies of individuals solicited over the internet via marketplace websites between June and October 2010. (Indictment ¶¶ 13-15 (RA 5: Hobbs Act robbery conspiracy/state law robbery conspiracy), 16-18 (RA 6: Hobbs Act robbery/state law robbery solicited through Craigslist.com), 20-22 (RA 8: Hobbs Act robbery/state law robbery solicited through website solecollector.com), 23-25 (RA 9: Hobbs Act robbery/state law robbery solicited through Craigslist.com).) Eighth, and finally,⁵ the Indictment alleges that Merritt forcibly stole property, including cellphones, a jacket, and United States currency from two unnamed individuals (referred to in the Indictment as John Doe #5 and John Doe #6) on January 12 and January 14, 2011. (Indictment ¶¶ 26 (RA 10: state law robbery), 27 (RA 11: state law robbery).)

B. Motion to Admit Other Acts

On October 3, 2014, the Government filed the instant motion, seeking to introduce evidence of certain crimes and bad acts ("other acts" or "uncharged acts") not detailed in theIndictment ("other acts"). (See Mot.) The Government's proffered evidence of other acts falls into six broad categories.

1. Six Tre Founding and Prior Gang Affiliations

The first category relates to the founding of Six Tre and Defendants' prior gang affiliations. In this respect, the Government submits that a former Six Tre member who is now a cooperating witness (referred to by the Government as "CW-1") will provide testimony regarding the founding of Six Tre by Ashburn and another individual, as well as Ashburn's prior involvement in a local gang referred to as "2 - 1st." (Id. at 7.) CW-1 is also expected to testify that several younger members of Six Tre began their involvement in criminal conduct as members of other gangs, and that in particular, he and Merritt were both members of a gang referred to as "Tre Six." (Id. at 7-8.) The Government further expects that two additional cooperating witnesses (referred to by the Government as "CW-2" and "CW-3"), who were former criminal associates of Laurent, will testify that Laurent was a member of the Crips gang before becoming a Six Tre member. (Id. at 8.)

2. Assaults

The second category of other acts includes a number of assaults allegedly committed by Defendants and other Six Tre members. The Government indicates that CW-1 will testify that assaults were commonly committed by both Six Tre members and other young men seeking membership in the gang. (Id.) CW-1 is expected to testify, for example, that when Ashburn was 18 years old, and already a Six Tre member, Ashburn assaulted a boy (who was approximately 13 or 14 years old) who had spit on him. (Id.) According to CW-1, in the course of the assault—which allegedly took place in front of multiple Ebbets Field residents—Ashburn repeatedly thrust an umbrella into the boy's mouth, causing him to bleed profusely as well asbreaking his teeth. (Id. at 8-9.) In addition, the Government expects CW-1 to testify that on another occasion, he witnessed Ashburn, who had been the "clear leader" of the gang, fighting with Devon Rodney,⁶ who was ascending within the Six Tre ranks. (Id. at 10.)

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