U.S. v. Pirk

DECISION AND ORDER Following a four-month jury trial, Defendants David Pirk (“Pirk”), Andre Jenkins (“Jenkins”), and Timothy Enix were convicted of eight, nine, and four counts, respectively, including a conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§1961 et seq., in connection with the operation of the Kingsmen Motorcycle Club (“KMC”). During the trial, Jenkins filed two motions for a mistrial, and Pirk filed one. (Dkt. 1141 (Jenkins); Dkt. 1174 (Pirk); Dkt. 1245 (Jenkins)). The Court orally denied all three mistrial motions but indicated at the time that it would issue a written decision after the trial confirming its rulings. This Decision and Order constitutes that written decision. Familiarity with the underlying facts of the case is assumed for purposes of this Decision and Order.Trial court judges “may declare a mistrial whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for doing so.” Renico v. Lett, 559 U.S. 766, 773-74 (2010) (internal quotation marks omitted). “[T]he manifest necessity standard cannot be interpreted literally, and… a mistrial is appropriate when there is a high degree of necessity.” Id. at 774 (internal quotation marks omitted). “The decision to declare a mistrial is left to the sound discretion of the judge, but the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.” Id. (internal quotation marks omitted). “[A] mistrial is warranted only upon a showing of actual prejudice.” United States v. Gaskin, 364 F.3d 438, 463 (2d Cir. 2004).Jenkins’ and Pirk’s motions for a mistrial arose out of three different occurrences during the trial: the testimony of Lieutenant Daryl Truty (“Truty”) of the North Tonawanda Police Department (Dkt. 1141); an extraneous comment made by Government witness Filip Caruso (“Caruso”) (Dkt. 1174); and the Government’s decision not to call two witnesses, despite having referenced those witnesses in its opening statement (Dkt. 1245). For the reasons previously stated on the record and as set forth below, Jenkins’ and Pirk’s motions for a mistrial are denied.Lieutenant Truty’s TestimonyAt the time of the murders of Paul Maue and Daniel Szymanski on September 6, 2014, Truty was a detective with the North Tonawanda Police Department. He was assigned to investigate the murders. Truty testified during the trial on March 16 and 19, 2018, explaining that he arrived at the KMC North Tonawanda clubhouse in the early morning hours on September 6, 2014. Truty testified about his efforts to identify (and rule out) potential suspects, and he testified concerning his retrieval of video evidence at both the clubhouse and Betty’s Bar, ultimately laying the foundation for the admission into evidence of Government Exhibit 5-a composite video matching the pertinent video from Betty’s Bar and the KMC clubhouse in a linear, concise timeline.Truty testified about various segments of the video, and at the portion of the video after the murders occurred, when Jenkins appears to be arriving back at Betty’s Bar, he testified that Jenkins’ jeans were different in appearance than earlier in the video because they appeared to have dark stains, consistent with blood. Jenkins’ counsel objected to the testimony on the ground that the video was black-and-white,¹ but the Court overruled the objection indicating that it was a fair ground for cross examination but did not justify precluding the testimony. Jenkins’ counsel cross-examined Truty concerning this testimony.After Truty testified, Jenkins filed a motion for a mistrial on March 20, 2018. (Dkt. 1141).² Jenkins argued that Truty’s testimony concerning the stains on Jenkins’ jeans constituted an improper expert or lay witness opinion and was therefore inadmissible. (Id. at

7-14). Jenkins contended that, although the existence of blood stains on Jenkins’ jeans was crucial to the Government’s proof, only one other Government witness-Rene Faulkner-corroborated Truty’s testimony that Jenkins’ jeans were bloodstained, and the Government had “no lab results, DNA testing, or other physical evidence” to support the notion that the jeans were bloodstained.³ (Id. at