592 F.Supp.3d 48
E.D.N.Y.2022Background
- Defendants Ppassim Elder and Wilbert Bryant were tried on a 14‑count Superseding Indictment; jury convicted Elder on Counts 1–13 (acquitted on 14) and Bryant on Counts 2, 7–10.
- Counts at issue on post‑trial motions: Count Two (bank fraud conspiracy), Counts Seven–Eight (extortion conspiracy and physical violence in furtherance of extortion against Mahmoud and Hani Kasem), Counts Nine–Ten (firearm use/brandishing/discharge in furtherance of a crime of violence and resulting death under 18 U.S.C. §§ 924(c) & 924(j)).
- Government presented extensive documentary and testimonial evidence (150+ exhibits, 39 witnesses) including bank records, witness testimony linking Elder to multiple similar bank‑fraud schemes, eyewitness and cooperator testimony about the extortion and the presence/use of a gun.
- Defendants moved under Fed. R. Crim. P. 29 for acquittal (insufficient evidence) and under Rule 33 for a new trial, arguing the Court’s decision to seat only vaccinated jurors violated the JSSA, Sixth Amendment fair‑cross‑section, and Fifth Amendment equal protection.
- The Court reviewed the sufficiency of evidence under the standard that views evidence in the light most favorable to the Government and declines to substitute its judgment for the jury, and considered Duren and § 1866(c)(2) when addressing the vaccination‑based jury exclusion.
- Ruling: The Court denied both the Rule 29 and Rule 33 motions, upholding convictions and concluding exclusion of unvaccinated jurors was within discretion and did not violate fair‑cross‑section principles or the JSSA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Count Two (bank fraud conspiracy) | Gov't: circumstantial and direct evidence showed an agreement between Elder and Bryant to use Bryant's account to defraud TD Bank; pattern of similar schemes linked Elder to beneficial ownership. | Bryant: no proof Hardy was defrauded, no proof Elder was beneficial owner, no proof Elder received funds. | Court: Evidence—witnesses, bank records, patterns—was sufficient; conspiracy conviction stands. |
| Sufficiency for Counts Seven–Eight (extortion and physical violence) | Gov't: testimony showed Elder demanded $40–50k, recruited Bryant/McCoy to retrieve money at gunpoint and threatened victims; object was obtaining money. | Defs: dispute was personal rather than about property/money; ownership/revenue evidence murky. | Court: Jury credited testimony that object was money; evidence adequate to support extortion and related violence convictions. |
| Sufficiency for Counts Nine–Ten (§ 924(c) & 924(j): firearm use and causing death) | Gov't: defendants had advance knowledge or continued participation after gun appeared; firearm was used in extortion and death resulted—felony‑murder theory supports § 924(j). | Defs: Bryant lacked dominion/control and gun discharged accidentally; neither defendant had advance knowledge; extortion not a predicate for murder under § 1111. | Court: Advance‑knowledge standard satisfied by testimony and conduct; extortion can supply malice aforethought under § 1111's second‑degree/felony‑murder theory; convictions sustained. |
| Jury selection: exclusion of unvaccinated jurors (Rule 33 / JSSA / Sixth Amendment / Equal Protection) | Gov't/Court: excluding unvaccinated jurors for this particular lengthy, crowded trial served significant state interests (public health, preventing disruption, prompt adjudication); § 1866(c)(2) permits excusal likely to disrupt proceedings. | Defs: seating only vaccinated jurors violated fair‑cross‑section (Duren), JSSA, Sixth and Fifth Amendment rights. | Court: Defs failed Duren first prong (unvaccinated not a cognizable distinctive group); even if prima facie, public health and administration interests justify the exclusion; excusal was case‑specific and lawful. |
Key Cases Cited
- Mi Sun Cho v. United States, 713 F.3d 716 (2d Cir. 2013) (standard for sufficiency review: whether any rational trier of fact could find guilt beyond a reasonable doubt)
- Autuori v. United States, 212 F.3d 105 (2d Cir. 2000) (deference to jury where reasonable doubt is fairly possible)
- Guadagna v. United States, 183 F.3d 122 (2d Cir. 1999) (trial court should not substitute its view of weight/credibility for the jury)
- Espaillet v. United States, 380 F.3d 713 (2d Cir. 2004) (acquittal only where evidence is nonexistent or meager)
- Rosemond v. United States, 572 U.S. 65 (2014) (§ 924(c) accomplice advance‑knowledge standard)
- Jackson v. United States, 335 F.3d 170 (2d Cir. 2003) (conspiracy liability attaches to agreed‑upon acts regardless of success)
- Duren v. Missouri, 439 U.S. 357 (1979) (three‑part test for fair‑cross‑section prima facie case)
- Lockhart v. McCree, 476 U.S. 162 (1986) (groups defined solely by shared attitudes are not distinctive for fair‑cross‑section purposes)