United States v. Pettway

1

UNITED STATES OF AMERICA, v. KENNETH PETTWAY, JR., Defendant.

No. 12-CR-103S (1)

United States District Court, W.D. New York

May 21, 2024

DECISION AND ORDER

WILLIAM M. SKRETNY, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Presently before this Court are Defendant Kenneth Pettway, Jr.'s second motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure and motion for release pending resentencing under 18 U.S.C. § 3143 (a)(2). (Docket Nos 1327, 1343.) The Honorable Thomas J. McAvoy, the trial judge, denied Pettway's first Rule 33 motion on October 15, 2018.^[1]See United States v. Pettway, No. 12-CR-103S (1), 2018 WL 4958962 (W.D.N.Y. Oct. 15, 2018).^[2]The government maintains that Pettway's current motion is procedurally barred and otherwise lacks merit, and it opposes Pettway's bid for release. For the reasons discussed below, Pettway's motions are denied.

II. BACKGROUND

A. Procedural History

On May 22, 2018, Pettway proceeded to trial on a 5-count indictment^[3] that charged him with two counts of narcotics violations (Counts 1 and 3), possession of firearms and ammunition by a convicted felon (Count 5), and two counts of possession of firearms in furtherance of a drug-trafficking crime (Counts 2 and 4), in violation of 21 U.S.C. §§ 846, 841 (a)(1), (b)(1)A)(iii), (b)(1)(C) and 18 U.S.C. §§ 922 (g)(1), 924 (a)(2), (c)(1)(A)(i), (c)(1)(C)(i), 2. (Docket Nos. 1014, 1033.) Nine days later, the jury convicted Pettway on each count. (Docket Nos. 1026, 1034, 1036.)

On July 7, 2018, after receiving several extensions of time, Pettway timely filed his first Rule 33 motion. (Docket No. 1061.) He argued that a new trial was required because the jury selection process violated his Sixth Amendment rights and because the court improperly admitted a rap video into evidence without proper authentication. Judge McAvoy rejected both arguments and denied Pettway's motion on October 15, 2018, the same day he sentenced Pettway to an aggregate term of 480 months' imprisonment and five years' supervised release. See Pettway, 2018 WL 4958962, at *1-6; Docket Nos. 1126, 1133.

Pettway appealed. (Docket No. 1140.)

On February 26, 2021, the United States Court of Appeals for the Second Circuit affirmed the judgment in part, vacated it in part, and remanded for further proceedings. See United States v. Pettway, 845 Fed.Appx. 42 (2d Cir. 2021). The court vacated Pettway's felon-in-possession conviction under Rehaif v. United States, in which the United States Supreme Court held that to secure such a conviction, the government must prove that “the defendant knew he possessed a firearm and also that he knew he had the relevant status [e.g., that he was a felon] when he possessed it.” 588 U.S. 225, 227, 139 S.Ct. 2191, 204 L.Ed.2d 594 (2019).

Because Pettway's pre-Rehaif jury was not charged accordingly, and because the record did not contain sufficient evidence to show that Pettway was on notice of his status as a felon, the court determined on plain error review that Pettway's conviction on Count 5 must be vacated and the case remanded for de novo resentencing. See Pettway, 845 Fed.Appx. at 47. The court further vacated the sentences on all counts to allow the district court to determine the applicability of the posttrial First Step Act amendments to 18 U.S.C. § 924 (c)(1)(C) that eliminated the “stacking” of multiple convictions from a single indictment for sentencing purposes.^[4] See id. at 4748. The court rejected Pettway's remaining arguments and affirmed the convictions as to all counts except Count 5. See id. at 48-51. The Mandate lodged on June 9, 2021. (Docket No. 1260.)

Shortly after the Second Circuit entered its Mandate, Judge McAvoy scheduled resentencing for September 3, 2021. (Docket No. 1263.) Resentencing was thereafter adjourned for consideration of the parties' submissions on how best to proceed to resentencing. (Docket Nos. 1267, 1271, 1276.) The Clerk of Court subsequently reassigned this matter to this Court on May 20, 2022. (Docket No. 1295.)

On June 6, 2022, this Court directed the parties to update their submissions concerning the resentencing issues to be resolved. (Docket No. 1296.) The parties complied with that Order (Docket Nos. 1301, 1304), but it was thereafter determined that Pettway's counsel had a non-waivable conflict of interest stemming from certain motions that Pettway intended to file in advance of resentencing (Docket No. 1308).

New counsel was ultimately assigned on December 21, 2022 (Docket No. 1309), and Pettway filed his instant motion on May 19, 2023 (Docket No. 1327), with briefing completed on September 28, 2023 (Docket Nos. 1332, 1336, 1337, 1341, 1342). Pettway also moved for release from custody pending resentencing. (Docket No. 1343.) Briefing on that motion concluded on November 7, 2023 (Docket Nos. 1346, 1347), with this Court taking both motions under advisement without oral argument at that time.

B. Pettway's Motion for a New Trial

Pettway principally maintains that a new trial is warranted due to prosecutorial misconduct. He challenges the sufficiency of the evidence and contends that he is actually innocent of Count 1 (conspiring to possess with intent to distribute, and to distribute, 280 grams or more of crack cocaine) and Count 2 (possessing a firearm in furtherance of a drug-trafficking crime), and that his convictions were secured only because the government knowingly presented false and coerced testimony from witnesses in the grand jury and at trial. He also maintains that his trial counsel was ineffective and that the government constructively amended the indictment at trial. Pettway's factual contentions follow.

1. Dalvin McCarriel

Pettway first contends that former Assistant United States Attorney Anthony M. Bruce “threatened, coerced, and frightened” Dalvin McCarriel into testifying falsely against him before the grand jury and at trial. See Affidavit of Kenneth Pettway, Jr. (“Pettway Aff.”), Docket No. 1327-1, ¶¶ 4-6, 50. According to Pettway, McCarriel told him personally and in a Facebook message in early 2017 (before Pettway's trial) that Bruce pressured him (McCarriel) into falsely incriminating Pettway in the grand jury. Id. ¶ 27. Pettway provided this information to his attorneys, but trial counsel allegedly did not fully investigate the issue before trial. Id. ¶¶ 28-36.

At trial, McCarriel testified on cross-examination that Bruce “made” him testify before a grand jury about Pettway. See Transcript, Docket No. 1179, pp. 21-24. McCarriel stated that Bruce acted like he would assist him with rape and domestic violence charges that he was facing in exchange for McCarriel “point[ing] the finger at” Pettway, but Bruce never assisted him. Id. pp. 22-23. McCarriel testified that he was “scared” when he testified before the grand jury, and that Bruce “had me so scared,” but he did not elaborate on why he was scared. Id. pp. 21, 23. He further testified that he contacted Pettway on Facebook and told him that Bruce was trying to make him testify and that Bruce made him feel “trapped.” Id. pp. 23-24. On re-direct examination, McCarriel testified that although he did not want to testify about Pettway before the grand jury, he testified truthfully and never lied. Id. p. 29.

Tony Olivo, a private investigator, interviewed McCarriel at Pettway's request by telephone on August 12, 2022. See Pettway Aff., ¶ 53, Exhibit A. According to Olivo's report, McCarriel stated that “police and prosecutors”^[5] pressured him to testify against Pettway and threatened him with rape and homicide charges if he failed to cooperate. Id. ¶ 54, Exhibit A, p. 1. McCarriel further advised that all of the information and testimony he previously provided about Pettway was false. Id. ¶ 55, Exhibit A, p. 1.

2. Daryl Morrison

Pettway makes similar contentions as it relates to Daryl Morrison, another trial witness. As with McCarriel, Pettway contends that Anthony Bruce “threatened, coerced, and frightened” Morrison into testifying falsely before the grand jury and at trial. Id. ¶¶ 48. He further alleges that Assistant United States Attorney Michael Felicetta, the trial prosecutor, called Morrison as a witness despite Morrison telling Felicetta that his previous testimony about Pettway was coerced by Bruce and false. Id. ¶ 8.

At trial, Morrison testified on direct examination^[6]that Bruce “persuaded” him to lie in his testimony before a grand jury and in the trial of Tre Smitherman, during which Morrison testified about his drug-trafficking activities with Pettway.^[7] See Transcript, Docket No. 1179, pp. 149-50. Morrison stated that his previous testimony that Pettway was distributing crack cocaine to him was a lie. Id. p. 150. He further testified that he “never sold no drugs in my life,” and he disclaimed his previous testimony to the contrary, including testimony that he engaged in drug-trafficking activities with Pettway. Id. pp. 150-153, 157.

On cross-examination, Morrison testified that he was previously untruthful in his testimony because he was in jail on a gun conviction and wanted to go home. Id. p. 154. He therefore “told a lot of lies.” Id. Morrison stated that he lied about “everything” in Pettway's case. Id. p. 155. Morrison further testified that he was “forced” and “threatened” to testify in the 2014 Smitherman trial. Id. p. 157.

Olivo the private investigator, also interviewed Morrison. In an August 3, 2022, face-to-face interview, Morrison told Olivo that Anthony Bruce and two federal agents threatened to take his 90-year-old grandmother to jail and to destroy her house if he did not truthfully explain his relationship to Pettway. See Pettway Aff., Exhibit B, p. 1. He further advised that Bruce and the agents threatened him with homicide...