United States v. Ruth

578 F.Supp.3d 392

UNITED STATES of America,

v.Jaron RUTH, Defendant.

1:18-CR-00004 EAW

United States District Court, W.D. New York.

Signed January 6, 2022

Michael Paul Felicetta, Joseph M. Tripi, Government Attorneys, United States Attorney's Office, Buffalo, NY, for United States of America.

Timothy W. Hoover, Hoover & Durland LLP, Herbert L. Greenman, Lipsitz Green Scime Cambria LLP, Buffalo, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, Chief Judge

INTRODUCTION

On January 15, 2019, defendant Jaron Ruth ("Ruth") pleaded guilty to Counts 1 and 4 of an Indictment returned on January 3, 2018, charging him with conspiracy to possess with intent to distribute, and to distribute, 28 grams or more of cocaine base, a quantity of cocaine, and a quantity of marijuana in violation of 21 U.S.C. § 846 (Count 1), and possession of firearms in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4). (Dkt. 56; Dkt. 57). Although Ruth admitted to the factual details related to his offenses of conviction as part of the plea, left unresolved was Ruth's responsibility for the murder of Henry Ackley, who was shot and killed inside his residence in Kill Buck, New York, on September 21, 2012. (Dkt. 56 at ¶ 4(e)).

To resolve that dispute, the Court held a sentencing hearing, which took place on August 17, 2020 through 21, 2020, continued on August 24, 2020, and concluded on September 17, 2020. (Dkt. 150; Dkt. 151; Dkt. 152; Dkt. 153; Dkt. 154; Dkt. 156; Dkt. 167). The purpose of the hearing was for the Court to receive evidence relating to the applicability of United States Sentencing Guideline ("U.S.S.G.") § 2D1.1(d)(1), cross-referencing U.S.S.G. § 2A1.1, for Ruth's alleged role in the murder of Henry Ackley on September 21, 2012. (See Dkt. 56 at ¶ 4(e)).

For reasons more fully explained below, the Court concludes that U.S.S.G. § 2D1.1(d)(1) ’s cross-reference to U.S.S.G. § 2A1.1 does not apply in this case, because the government has failed to demonstrate that the Ackley homicide is "relevant conduct" to the offenses to which Ruth pleaded guilty. However, the Court finds that it is more likely than not based on the credible evidence before it that Ruth committed the murder of Henry Ackley, and therefore pursuant to 18 U.S.C. § 3553(a) an upward variance from the recommended sentence under the Sentencing Guidelines to reflect that conduct may be warranted.

BACKGROUND AND PROCEDURAL HISTORY

On January 3, 2018, Ruth was named in a five-count Indictment charging him with the following offenses: conspiracy to possess with intent to distribute, and to distribute, 28 grams or more of cocaine base, a quantity of cocaine, and a quantity of marijuana in violation of 21 U.S.C. § 846 (Count 1); distribution of 28 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B), and 18 U.S.C. § 2 (Count 2); using and maintaining a premises for drug trafficking in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (Count 3); possession of firearms in furtherance of drug trafficking crimes in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2 (Count 4); and discharge of a firearm causing death, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 924(j)(1) (Count 5).¹ (Dkt. 1). Represented by prior counsel, Ruth filed omnibus pretrial motions on June 11, 2018, including a motion to suppress statements arising from an April 5, 2016 interview conducted with law enforcement at the Orleans Correctional Facility. (Dkt. 28). On October 1, 2018, the magistrate judge to whom this matter had been referred pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), issued a Report and Recommendation recommending that Ruth's motion to suppress be denied. (Dkt. 39).² No objections were filed, and the Court adopted the Report and Recommendation on October 22, 2018. (Dkt. 42).

On January 15, 2019, Ruth pleaded guilty to Counts 1 and 4 of the Indictment. (Dkt. 56; Dkt. 57). Pursuant to the plea agreement, Ruth admitted to conspiring to distribute 28 grams or more of cocaine base, cocaine, and marijuana, including obtaining quantities of cocaine base from suppliers which he resold to drug users in Erie and Cattaraugus County during the time period of 2010 and continuing until in or about April 2013. (Dkt. 56 at ¶ 4(a) & (b)). Ruth further admitted that he possessed firearms to protect himself, his drugs, and drug proceeds. (Id. at ¶ 4(b)). Ruth admitted that he occasionally used marijuana and distributed small amounts of cocaine and marijuana during this time period. (Id. ). The plea agreement also contains the following provision:

On September 21, 2012, Henry Ackley was shot and killed inside his residence in Killbuck, New York, in the Western District of New York. The government submits that this murder is a factor the Court should consider at sentencing pursuant to Title 18 United States Code, Section 3553(a), and/or as relevant conduct such that the cross-reference to U.S.S.G. § 2A1.1(a) applies. The defendant denies participation in the murder of Henry Ackley and submits that the Court should not consider it at sentencing pursuant to Title 18, United States Code, Section 3553(a). The defendant further submits that the cross-reference to U.S.S.G. § 2A1.1(a) does not apply to the offenses of conviction.

(Id. at ¶ 4(e)). The parties agreed that, if the cross-reference applies, the aggregate sentencing range under the Sentencing Guidelines is 384 to 465 months imprisonment, whereas if the cross-reference does not apply, the sentencing range is 120 to 123 months imprisonment. (Id. at ¶ 11). Notwithstanding whether the cross-reference applies, the government agreed not to seek a prison sentence greater than 240 months (20 years). (Id. at ¶ 15).

The sentencing hearing took place on August 17, 2020, through 21, 2020, continued on August 24, 2020, and concluded on September 17, 2020. (Dkt. 150; Dkt. 151; Dkt. 152; Dkt. 153; Dkt. 154; Dkt. 156; Dkt. 167). The following witnesses testified at the hearing: Cory Higgins, a Task Force Officer (TFO) with the Drug Enforcement Administration (DEA) ("TFO Higgins"); Charlie McDade; Kenneth Smith, Jr.; Demario Watkins; Alesaundra Allen; Douglas Reed; and Jason Siafakas. (See Dkt. 145). The government also offered evidence in the form of pre-recorded video testimony of Amber Crouse ("Amber" or "Crouse") (see Dkt. 169 at 5), who implicated Ruth in the Ackley homicide. Amber Crouse is deceased and therefore did not testify at the hearing.³

Following the hearing, on September 22, 2021, Ruth filed a motion to enforce a subpoena he had served on the Cattaraugus County District Attorney's Office (Dkt. 168), which the Court granted on October 20, 2021 (Dkt. 174). The parties submitted their post-hearing briefs on April 26, 2021 (Dkt. 204; Dkt. 205; Dkt. 206; Dkt. 207), and their responses on May 4, 2021 (Dkt. 208; Dkt. 209). The Court held oral argument on May 20, 2021, and reserved decision. (Dkt. 210).

DISCUSSION

I. Legal Standard

"At sentencing, disputed factual allegations must be proven by the government by a preponderance of the evidence...." United States v. Rizzo , 349 F.3d 94, 98 (2d Cir. 2003) ; United States v. Juwa , 508 F.3d 694, 701 (2d Cir. 2007) ("We have held that facts relevant to sentencing must be found by a preponderance of the evidence."). "The sentencing court's discretion is ‘largely unlimited either as to the kind of information [s]he may consider, or the source from which it may come.’ Any information or circumstance shedding light on the defendant's background, history and behavior may properly be factored into the sentencing determination." United States v. Carmona , 873 F.2d 569, 574 (2d Cir. 1989) (quoting United States v. Tucker , 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) ). In other words, sentencing proceedings are not "second trials." United States v. Fatico , 603 F.2d 1053, 1057 (2d Cir. 1979). The Second Circuit has held that the confrontation clause as articulated in Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), does not apply at sentencing, see United States v. Martinez , 413 F.3d 239, 243 (2d Cir. 2005) ("Nor did Crawford or Booker so undermine the rationale of Second Circuit precedent involving the consideration of hearsay testimony at sentencing that we may now overrule the decisions of earlier panels of this Court."), and the sentencing court may consider hearsay statements in determining an appropriate sentence, so long as in the case of a dispute the government introduces corroborating evidence, see United States v. Weinberg , 852 F.2d 681, 685 (2d Cir. 1988) ("It has long been established that hearsay evidence is admissible at a sentencing hearing. Even if the defendant challenges the hearsay portions of a presentence report, that evidence need not be disregarded if the government introduces corroborating evidence." (internal citations omitted)); United States v. Fell , No. 5:01-cr-12-01, 2018 WL 7247398, at *5 (D. Vt. Mar. 16, 2018) ("As the Fatico court stated: ‘[W]hen the defendant does not dispute the truth of the statements sought to be introduced or the statements are sufficiently corroborated by other evidence, hearsay is admissible in sentencing proceedings.’ " (citation omitted)); see also United States v. Scott , 614 F. App'x 567, 569 (2d Cir. 2015) (explaining that a district court may rely on hearsay evidence during sentencing, but that such hearsay evidence must be "sufficiently reliable").

"This is not to say ... that any and all consideration of hearsay testimony at sentencing proceedings is permissible. The Due Process Clause ‘is plainly implicated at sentencing,’ even though it does not require at sentencing ‘all the procedural safeguards and strict evidentiary limitations of the criminal trial itself.’ " Martinez , 413 F.3d at 244 (quoting Fatico, 603 F.2d at 1054 ); Juwa , 508 F.3d at 700 ("there are distinct limits to [the sentencing court's] discretion, and they include a...