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United States v. Gilmore

United States District Court, W.D. North Carolina, Charlotte Division

June 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
(19) CYNTHIA GILMORE Defendant.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court upon Defendant Cynthia Gilmore's Motion for Judgment of Acquittal, Motion for New Trial, and Motion to Dismiss (Doc. No. 1560) and Defendant Gilmore's Motion for Dismissal (Doc. No. 1544). The Government has responded in opposition (Doc. No. 1594), and the motions are now ripe for disposition. For the reasons stated herein, Defendant Gilmore's motions (Doc. Nos. 1544 and 1560) are DENIED.

         I. BACKGROUND

         Trial by jury in this case commenced on May 2, 2018. On May 17, 2018, the jury returned unanimous verdicts, finding Defendant Gilmore and her co-defendants, (21) Pedro Gutierrez and (5) James Baxton, guilty of one count of racketeering conspiracy (“RICO conspiracy”) in violation of 18 U.S.C. § 1962(d).

         The Government, at trial, presented inter alia the following evidence: (1) photographs of Defendant Gilmore wearing gang paraphernalia, flashing gang hand signs, and/or associating with other United Blood Nation (UBN) members; (2) text messages from 2015 between Defendant Gilmore and co-defendant Montraya Atkinson, a/k/a Hardbody, using UBN code to discuss matters including cocaine trafficking, scheduling gang meetings, collecting gang dues, and other matters concerning the leadership and organization of the gang, and violent actions taken against Crips; (3) recorded jail calls between Defendant and other gang members discussing UBN's leadership structure, collection of dues, meetings with high-ranking leaders, smuggling controlled substances into prison for sale, and other issues; (4) visitor logs and commissary account records showing meetings Defendant had and monies she paid to Defendant Gutierrez; (5) testimony from multiple fellow UBN gang members as to Defendant's membership in the UBN and crimes undertaken; (6) text messages and phone calls related to an armed robbery and shooting that occurred in August of 2011 which implicated Defendant, who also served as a getaway driver for one of the robbers; (7) text messages and calls indicating Defendant's participating in a wire fraud scheme in which a non-UBN member filed false tax returns for UBN members including Defendant; and (8) Defendant's admission upon arrest that she was a member of the Bloods.

         Defendant Gilmore filed a Motion for Dismissal (Doc. No. 1544) on May 15, 2018, at the close of the Government's presentation of evidence and subsequently filed her Motion for Judgment of Acquittal, Motion for New Trial, and Motion to Dismiss (Doc. No. 1560) on May 19, 2018. The Government issued its response in opposition (Doc. No. 1594) to all motions on May 29, 2018. The Court addresses Defendant Gilmore's arguments below.

         II. ANALYSIS

         a. Motion for Judgment of Acquittal

         First, Defendant Gilmore contends that pursuant to Federal Rule of Criminal Procedure 29(c) she is entitled to a judgement of acquittal for insufficiency of the evidence. (Doc. No. 1560, p. 1).

         Rule 29 provides that a court “must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” “The standard for reversing a jury verdict of guilty is a high one: the Court does so only where the prosecution's failure is clear.” United States v. Perry, 757 F.3d 166, 175 (4th Cir. 2014) (internal quotation marks omitted). “The jury's verdict must be upheld on appeal if there is substantial evidence in the record to support it, where substantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt.” Id. (internal quotation marks omitted). “In determining whether there is substantial evidence to support a verdict, we defer to the jury's determinations of credibility and resolutions of conflicts in the evidence, as they are within the sole province of the jury and are not susceptible to judicial review.” United States v. Louthian, 756 F.3d 295, 303 (4th Cir. 2014) (internal quotation marks omitted). In assessing a motion pursuant to Rule 29, the evidence is viewed in the light most favorable to the Government. United States v. Cornell, 780 F.3d 616, 630 (4th Cir. 2015).

         To sustain a RICO conspiracy charge, the Government must prove that (1) an enterprise affecting interstate commerce existed; (2) that each defendant knowingly and intentionally agreed with another person to conduct or participate in the affairs of the enterprise; and (3) that each defendant knowingly and willfully agreed that he or some other member of the conspiracy would commit at least two racketeering acts. See Cornell, 780 F.3d at 621 (citing United States v. Mouzone, 687 F.3d 207, 218 (4th Cir.2012)).

         Viewing the evidence in the light most favorable to the Government, the Court concludes that substantial evidence supports Defendant Gilmore's conviction. The Government presented ample evidence to support each element of RICO conspiracy. In regards to the first element, the Government presented evidence at trial demonstrating the UBN constitutes an enterprise with a distinct effect on interstate commerce through its dealings all over the east coast in drug trafficking, communicating gang orders through use of wires and mail, and perpetrating fraud on behalf of the gang inter alia. Secondly, through gang member testimony, messages and photographs posted to social media, text messages, and Defendant Gilmore's own words, the Government demonstrated Defendant Gilmore's knowing and intentional agreement with another person to conduct or participate in the affairs of the UBN. Lastly, the Government showed that Defendant Gilmore knowingly and willfully agreed with some other member of the conspiracy to commit at least two racketeering acts. The Government established this by presenting the following evidence: text messages between Defendant Gilmore and another gang member regarding the distribution of cocaine, thus demonstrating her agreement to engage in drug trafficking; additional electronic communications between Defendant Gilmore and another gang member revealing an agreement to engage in robbery under both North Carolina state law and federal law; testimony from a Government witness indicating Defendant Gilmore had sold crack with another UBN member; testimony from a Government witness indicating Defendant Gilmore was involved in a 2011 robbery that attempted to obtain drugs and cash with another UBN member; and additional recorded communications indicating Defendant Gilmore agreed to participate in wire fraud and/or identity theft with another UBN member. Accordingly, the Court concludes that the evidence presented by the Government at trial was sufficient to sustain a conviction in regards to Defendant Gilmore.

         Defendant Gilmore in her initial Rule 29 motion (Doc. No. 1544) also asserts the Government presented insufficient evidence at trial to establish the common purposes of the UBN as charged in the Indictment. The Court finds this argument similarly unpersuasive. The Government at trial presented significant evidence, in the forms of both documentation and testimony, regarding the UBN's history, culture, and rules. The Government presented evidence that the UBN requires its members to pay dues, and that in large part members resort to illegal activities such as perpetrating robberies, drug trafficking, and fraud to pay these dues. Other evidence indicated that dues money was frequently used to support UBN members who were arrested in connection with their crimes for the UBN. Furthermore, testimony and documentation evidence indicated that cooperation with law enforcement was strictly prohibited in UBN culture, and there were severe punishments for “snitches.” As such, the Court determines there was sufficient evidence presented at trial to support the common purposes of the UBN as charged in the Indictment. Defendant Gilmore's motion for judgment of acquittal is therefore overruled.

         b. ...


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