United States v. Rodriguez

UNITED STATES OF AMERICA, v. JOSE RODRIGUEZ, Defendant.

19 Cr. 779 (AKH)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 30, 2020

ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND REGULATING EVIDENTIARY ISSUES

ALVIN K. HELLERSTEIN, U.S.D.J.:

In this motion, Jose Rodriguez ("Defendant") seeks to dismiss a multi-count indictment dated October 30, 2019, charging Defendant with Conspiracy to Commit Murder in Aid of Racketeering (Count One); Murder in Aid of Racketeering (Count Two); Murder Through the Use of a Firearm (Count Three); and Felon in Possession of Ammunition (Count Four). See Indictment, 19 Cr. 779, ECF No. 2 ("2019 Indictment"); see also Def.'s Mem. of Law in Supp. of Mot. to Dismiss, ECF No. 29 ("Def. Mem."). According to the Government, these charges relate to Defendant's alleged involvement in the shooting death of Daquan Cooper in the vicinity of 1595 Unionport Road in the Parkchester neighborhood of the Bronx on or about June 25, 2015. See Gov't Mem. of Law in Opp'n to Mot. to Dismiss, ECF No. 31, at 1 ("Gov't Mem."). Defendant also moves to compel pretrial disclosure of certain evidentiary material and notices.

For the reasons that follow, Defendant's motion is denied, except insofar as the Government is directed to make certain evidentiary disclosures as provided below.

Background

A. 2016 Indictment

In April 2016, Defendant was arrested pursuant to a superseding indictment charging dozens of individuals with racketeering, narcotics, and firearm offenses in connection with a street gang called the "Big Money Bosses" ("BMB"). See Superseding Indictment, S2 15 Cr. 95 (AJN) ("2016 Indictment"). The indictment alleged that BMB was a criminal organization whose members and associates engaged in murder, attempted murder, robbery, attempted robbery, narcotics trafficking, bank fraud, and the passing of counterfeit currency. Id. at 5. Although BMB was a faction of the "Young Bosses" or "YBz" street gang, which operated in various parts of New York City, BMB itself operated principally in the northeast Bronx near White Plains Road between 215th and 233rd Streets, and in the vicinity of Boston Road and Eastchester Road. Id. at 5-6.

The 2016 Indictment charged Defendant with four counts corresponding to alleged misconduct spanning approximately 2007 through 2016: Racketeering Conspiracy, in violation of 18 U.S.C. § 1962(d) (Count One); Narcotics Conspiracy, in violation of 21 U.S.C. § 846 (Count Two); Distribution of Narcotics Within One Thousand Feet of Playgrounds and Schools, in violation of 21 U.S.C. §§ 846, 860; 18 U.S.C. § 2 (Count Three); and Use of Firearms in Furtherance of Counts One and Two, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), (2) (Count Four).

In describing the racketeering enterprise and its operations, the indictment alleged that BMB associates committed acts of violence on behalf of the organization, including shootings and stabbings resulting in death. Id. at 6-7, 10. The indictment did not identify the shooting of Daquan Cooper, although it did discuss other specific incidents of homicide. Id.

In May 2016, Defendant's counsel filed a bail application seeking Defendant's release from custody. Def. Mem. at 7. In advance of a bail hearing before Magistrate Judge Ellis, the Government submitted a letter opposing Defendant's request for release and describing the extent of Defendant's alleged role in the BMB enterprise. Id., Ex. G, ECF No. 29-7 ("2016 Bail Letter"). The letter described BMB's history of violence in the northeast Bronx, including shootings and stabbings of rival gang members. Id. at 2-4. It also elaborated on Defendant's alleged role in committing certain acts of violence as "one of the original members of BMB," including a stabbing in October 2009, forcible robbery of a cell phone in September 2009, and resisting arrest and aiding in the escape of a fellow BMB associate in January 2011 by using force against police trying to effectuate an arrest. Id. at 8-9.

B. 2016 Plea Agreement and Allocution

On or about December 7, 2016, the Government provided Defendant's counsel with a plea agreement to resolve the charges in the 2016 Indictment. See Def. Mem., Ex. H., ECF No. 29-8 ("2016 Plea Agreement"). Under the terms of the agreement, Defendant agreed to plead guilty to two counts of the 2016 Indictment: Count One (Racketeering Conspiracy) and Count Four (using, carrying, and possessing firearms in relation to the narcotics conspiracy charged in Count Two). Id. In exchange for Defendant's plea, the Government pledged to dismiss any remaining counts and not to further prosecute Defendant for certain crimes. Specifically, the agreement provided:

In consideration of the defendant's plea to the above offenses, the defendant will not be further prosecuted criminally by this Office (except for criminal tax violations, if any, as to which this Office cannot, and does not, make any agreement), for: (1) participating in a racketeering conspiracy, in violation of Title 18, United States Code, Section 1962(d), from at least in or about 2007, up to and including in or about 2016, as charged in Count One of the Indictment; and (2) using, carrying, and possessing firearms during and in relation to the narcotics conspiracy charged in Count Two of the Indictment, as charged in Count Four of the Indictment, it being understood that this agreement does not bar the use of suchconduct as a predicate act or as the basis for a sentencing enhancement in a subsequent prosecution including, but not limited to, a prosecution pursuant to 18 U.S.C. §§ 1961 et seq.

Id. at 1-2. The agreement also stipulated to various sentencing calculations. Id. at 2-6.

On December 15, 2016, Defendant pled guilty to Counts One and Four, pursuant to the plea agreement reached with the Government. See Def. Mem., Ex. I., ECF No. 29-9 ("Plea Transcript"). During his plea allocution, Defendant admitted to the following conduct:

Between 2007 and 2016, in the Bronx and elsewhere, I agreed with others to participate in activities of the enterprise charged in Count One of the indictment. Among other things, the agreement and conduct included possession and sales of marijuana in amounts greater than 60 kilograms. I knew that this conduct was illegal. Furthermore, on October 4, 2011, in connection with my agreement with others to possess and sell marijuana referenced in Count Two, I possessed and carried a handgun in order to protect myself in carrying out the activities.

Id. at 20.

When asked by the court to clarify the identity of the enterprise for which Defendant engaged in this conduct, Defendant confirmed that he was acting on behalf of the BMB gang. Id. at 21. On May 18, 2017, Defendant was sentenced to 84 months' imprisonment and three years of supervised release on Counts One and Four of the 2016 Indictment. See Def. Mem., Ex. K., ECF No. 29-11, at 35 ("Sentencing Transcript").

C. Present Indictment

On or about March 8, 2017, a multi-count indictment was filed against several individuals, alleging participation in a racketeering conspiracy as part of a criminal enterprise known as the "Beach Avenue Crew." See Superseding Indictment, S2 15 Cr. 854 (LTS); Def. Mem., Ex. L., ECF No. 29-12. Defendant Rodriguez was not named in this indictment.

On October 30, 2019, a grand jury returned the present indictment, charging Defendant with four counts: Conspiracy to Commit Murder in Aid of Racketeering, in violationof 18 U.S.C. § 1959(a)(5) (Count One); Murder in Aid of Racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) and 2 (Count Two); Murder Through the Use of a Firearm, in violation of 18 U.S.C. §§ 924(j) and 2 (Count Three); and Felon in Possession of Ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count Four). See 2019 Indictment at 1-8.

The indictment alleges that Defendant was a member of the Beach Avenue Crew, a criminal organization involved in narcotics trafficking and violent acts principally in the vicinity of the Parkchester neighborhood in the Bronx. From approximately 2008 until 2017, Beach Avenue Crew members and associates allegedly engaged in a series of violent disputes with rival Bronx gangs hailing from Taylor Avenue, Leland Avenue, and the Parkchester Apartment housing complex, among others. Id. at 2. Beach Avenue Crew members and associates allegedly committed assault and murder to protect the gang's drug territory, retaliate against rival gangs, and promote the gang's reputation. Id. at 2-3.

The 2019 Indictment concerns Defendant's alleged involvement in the murder of Daquan Cooper on or about June 25, 2015 in the vicinity of 1595 Unionport Road in the Bronx. Count One alleges, inter alia, that Defendant, along with others, conspired to murder Cooper for the purpose of gaining entrance to and maintaining and promoting his position in the Beach Avenue Crew. Id. at 4-5. Count Two alleges, inter alia, that Defendant and others knowingly and intentionally murdered Cooper, and aided and abetted the same, by shooting and killing Cooper for the purposes described in Count One. Id. at 6-7. Count Three alleges, inter alia, that Defendant knowingly possessed and used firearms to carry out Cooper's murder. Id. at 7-8. Finally, Count Four alleges, inter alia, that Defendant knowingly carried a 9mm Luger caliber Winchester Cartridge on the day of the murder, despite having been previously convicted of afelony.¹ Id. at 8. The indictment concludes by making special findings as to the intentionality of Defendant's actions. Id. at 9-10.

D. Procedural History

On November 12, 2019, I issued a protective order governing the procedures by which certain material would be disclosed by the Government to Defendant's counsel.² ECF No. 9. Following multiple status conferences, I issued an order on May 28, 2020, setting the final pretrial conference for January 6, 2021 to be followed by a trial on January 11, 2021. ECF No. 22. On June 10, 2020, the Government submitted a letter to the Court indicating that the...