United States v. Jenkins

19-610-cr (L)
United States v. Jenkins
In the
United States Court of Appeals
For the Second Circuit
August Term, 2021
Nos. 19-610-cr (L); 19-637-cr (Con), 19-2778-cr (Con)
UNITED S TATES OF AMERICA,
Appellee,
v.
A NDRE JENKINS , AKA L ITTLE BEAR , D AVID PIRK, TIMOTHY E NIX , AKA
B LAZE ,
Defendants-Appellants.*
On Appeal from a Judgment of the United States District Court for
the Western District of New York.
A RGUED: MAY 18, 2022
DECIDED: A UGUST 5, 2022
Before: K EARSE, JACOBS , and NARDINI, Circuit Judges.
* The Clerk of Court is directed to amend the caption as set forth above.

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Defendants-Appellants Andre Jenkins, David Pirk, and
Timothy Enix were convicted in the United States District Court for
the Western District of New York (Elizabeth A. Wolford, Chief Judge)
of firearms, narcotics, and racketeering offenses following a jury trial
at which Pirk and Enix testified in their own defense. In a
concurrently filed summary order, we consider and reject nearly all
of Defendants-Appellants’ arguments except with respect to vacatur
of Pirk’s and Jenkins’s convictions on Count 2 of the Superseding
Indictment. In this opinion, we hold that, contrary to Pirk’s and
Enix’s arguments, the district court did not err in instructing the jury
on the principles to use in evaluating the testimony of interested
witnesses, including Pirk and Enix. The district court’s instruction
did not assume the testifying defendants’ guilt or otherwise
undermine the presumption of innocence. Accordingly, we AFFIRM
in part and VACATE in part the judgments of the district court and
REMAND the case to the district court for further proceedings
consistent with this opinion and the concurrently filed summary
order.
K ATHERINE A. G REGORY , Assistant United
States Attorney, for Trini E. Ross, United
States Attorney for the Western District of
New York, Buffalo, NY, for Appellee.
MICHAEL S. D EAL , Legal Aid Bureau of
Buffalo, Inc., Buffalo, NY, for Defendant-
Appellant Jenkins.
WILLIAM T. E ASTON (Cheryl M. Buth,
Meyers Buth Law Group, Orchard Park,
NY, on the brief), Easton Thompson

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Kasperek Shiffrin LLP, Rochester, NY, for
Defendant-Appellant Pirk.
JAMES W. G RABLE , JR . (Terrence M.
Connors, Rebecca F. Izzo, on the brief),
Connors LLP, Buffalo, NY, for Defendant-
Appellant Enix.
WILLIAM J. NARDINI, Circuit Judge:
Defendants-Appellants Andre Jenkins, David Pirk, and
Timothy Enix appeal from judgments of conviction entered after a
jury trial on narcotics, firearms, and racketeering offenses. In this
opinion, we address only Pirk’s challenge, which Enix joins, to the
district court’s instruction on interested witnesses. Finding no error
in that instruction, we AFFIRM the judgment of the district court in
all respects but one. For reasons discussed in a concurrently filed
summary order, we VACATE Pirk’s and Jenkins’s convictions on
Count 2 of the Superseding Indictment and REMAND the case for
further proceedings.

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I. Background
Pirk, Enix, and Jenkins belonged to a motorcycle gang known
as the Kingsmen Motorcycle Club (“KMC”). Pirk was the National
President of the KMC beginning in 2013. Enix was the Regional
President of Florida and Tennessee and was appointed to the position
of National Secretary and Treasurer by Pirk. Jenkins did not hold a
leadership position but was a member of a Florida KMC chapter.
The government charged Pirk, Enix, and Jenkins with
racketeering, narcotics, and firearms offenses arising out of their
membership in the KMC. At trial, Pirk and Enix took the witness
stand and testified on their own behalf. After the close of evidence,
the district court instructed the jury, in part:
If [a witness] is interested in the outcome of the trial on
one side or the other, you may consider such interest in
determining how much credit or weight you will give to
his or her testimony. A witness is an interested witness
when by reason of relationship, friendship, antagonism,
or prejudice in favor of or against one side or the other,
his or her testimony, in your judgment, is biased or likely
to be biased toward the side which he or she favors. . . .
In determining the credibility of a witness, you may

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consider whether such witness has any bias or prejudice
for or against any party in the case. In determining the
credibility and weight to be given to the testimony of a
witness, you should take into account such bias or
prejudice. Evidence that a witness is biased or
prejudiced for or against a party requires you to view the
witness’[s] testimony with caution, to weigh it with care,
and to subject it to close and searching scrutiny.
However, keep in mind that you should not reject the
testimony of an interested witness merely because of
such interest. Nor should you accept the testimony of a
witness merely because of such disinterest. It is your
duty in the case of all witnesses to accept such of the
testimony as you believe to be truthful and reject only
such testimony as you believe to be false. As I said,
interest and disinterest are merely factors you may
consider in evaluating credibility.
As I have mentioned, in a criminal case, a defendant
cannot be required to testify. Our Constitution provides
that he has the right to elect not to testify. However, if a
defendant chooses to testify, he is, of course, permitted
to take the witness stand on his own behalf. In this case,
Mr. Pirk and Mr. Enix decided to testify. You should
examine and evaluate their testimony just as you would
the testimony of any witness with an interest in the
outcome of this case.

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Joint App’x at 18408–09. The jury ultimately convicted Defendants-
Appellants on each of the charges in the Superseding Indictment.
This appeal followed.
II. Discussion
On appeal, Pirk claims that the district court’s interested-
witness instruction undermined the presumption of innocence to
which all criminal defendants are entitled at trial. See Nelson v.
Colorado, 137 S. Ct. 1249, 1255–56 (2017) (“Axiomatic and elementary,
the presumption of innocence lies at the foundation of our criminal
law.” (internal quotation marks and alteration omitted)). For the
following reasons, we disagree.
A. Standard of review
Although Defendants-Appellants submitted their own
proposed jury instruction and lodged a general objection to the
instructions “to the extent the Court’s proposed charge is different
from those that [Defendants-Appellants] submitted,” Joint App’x at
17951, Pirk did not specifically object to the district court’s proposed

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interested witness instruction. Pirk therefore concedes that he did not
preserve the issue for appellate review, because “[a] mere ‘request for
an instruction before the jury retires’ does not ‘preserve an objection
to the instruction actually given by the court.’” United States v. Solano,
966 F.3d 184, 193 (2d Cir. 2020) (quoting Jones v. United States, 527 U.S.
373, 388 (1999)); see also Fed. R. Crim. P. 30(d) (“A party who objects
to any portion of the instructions . . . must inform the court of the
specific objection and the grounds for the objection before the jury
retires to deliberate.”). Accordingly, we review for plain error. Fed.
R. Crim. P. 52(b); Solano, 966 F.3d at 193. On plain error review, the
burden rests on the appellant to establish that there is “(1) error, (2)
that is plain, and (3) that affects substantial rights. If all three
conditions are met, an appellate court may then exercise its discretion
to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”

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Solano, 966 F.3d at 193 (internal quotation marks and alterations
omitted).
B. Interested-witness jury instructions in criminal cases
If the district court decides to instruct a jury on how to evaluate
the testimony of a defendant who chooses to testify, the district court
must be careful not to undermine two “bedrock constitutional
principles”: first, “that a defendant has the right to, but is not required
to, testify in his own defense at trial,” and second, “that the defendant
is presumed innocent until proven guilty.” Solano, 966 F.3d at 194.
For this reason, a district court errs when it instructs the jury that the
defendant has a motive to testify falsely, whether it does so explicitly
or implicitly. In United States v. Gaines, we found error in instructions
that explicitly identified the defendant’s “deep personal interest in the
result of his prosecution” as “creat[ing] a motive for false testimony.”
457 F.3d 238, 242 (2d Cir. 2006). We held that this instruction
undermined the presumption of innocence and said that its “critical
defect” was “its assumption that the defendant is guilty.” Id. at 247.

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Indeed, such an instruction would be inaccurate in the case of an
innocent testifying defendant, who would have a motive to testify
truthfully to exonerate himself. See id. at 246.
We reached a similar conclusion in United States v. Brutus with
respect to a jury charge that highlighted the defendant as having “a
deep personal interest in the outcome of her prosecution,” an “interest
which is possessed by no other witness,” and that “creates a motive
to testify falsely.” 505 F.3d 80, 85 (2d Cir. 2007). Relying on Gaines,
we held that this instruction “impermissibly undermines the
presumption of innocence because it presupposes the defendant’s
guilt.” Id. at 87. We also extended the principle embodied by Gaines
by adding that the error in a guilt-assuming jury instruction cannot
be cured or balanced by additional, more favorable language. Id.
Likewise, in United States v. Mehta, we found plain error in a charge
that told the jury that they could “consider the fact that a defendant’s
interest in the outcome of the case creates a motive for false testimony,

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but it by no means follows that a defendant is not capable of telling
the truth.” 919 F.3d 175, 180 (2d Cir. 2019). Reviewing Gaines and
Brutus, we noted that “[w]e have repeatedly held, in no uncertain
terms, that this charge is forbidden,” because “it presupposes the
defendant’s guilt.” Id. at 182 (internal quotation marks omitted).
Finally, in United States v. Solano, we surveyed these and other
decisions and applied their reasoning to identify plain error in a jury
charge “which included the instruction (a) that a witness’s interest ‘in
the outcome of the case . . . . creates a motive on the part of the witness
to testify falsely[,]’ and (b) that this applies to ‘any witness[.]’” 966
F.3d at 197 (internal citation omitted). Such an instruction, we held,
“suffers the same substantive constitutional defect identified and
prohibited by Gaines and Brutus and their progeny.” Id. Even though
the district court’s instruction did not explicitly single out the
defendant as an interested witness (after identifying interested
witnesses as possessing a motive to testify falsely), it did so implicitly

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because “[i]t is a matter of common sense that the defendant in a
criminal case has a profound interest in its outcome, [so] an
instruction indicating to the jury that that interest gives him a motive
to testify falsely is contrary to the presumption of innocence.” Id.
(internal citations omitted). Taken together, these cases reflect that a
trial court may not, explicitly or implicitly, instruct the jury that a
defendant has a motive to testify falsely because such guilt-assuming
language runs counter to the presumption of innocence.
C. Application
Contrary to Pirk’s arguments, the district court’s jury charge
did not run afoul of these principles. At no point did the court assume
the defendants’ guilt by suggesting, directly or indirectly, that the
defendants had a motive to testify falsely. The instructions here were
guilt-neutral, not guilt-assuming. The district court even-handedly
instructed the jury to consider the defendants’ “testimony just as you
would the testimony of any witness with an interest in the outcome
of this case” after generally defining interested witnesses as those

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whose testimony, “by reason of relationship, friendship, antagonism,
or prejudice in favor of or against one side or the other, . . . in your
judgment, is biased or likely to be biased toward the side which he or
she favors.” Joint App’x at 18408–09. The court did not equate
“biased or likely to be biased” with a motive to testify falsely. Quite
to the contrary, the court explained that a witness’s interest or lack
thereof should not cause the jury to automatically reject or accept a
witness’s testimony. Although we do not mandate that district courts
provide an interested witness instruction or use any particular verbal
formulas when they do so, we commend the charge given in the
present case as a carefully balanced instruction on witness bias that
did not undermine the presumption of innocence.
Accordingly, we find that the district court did not commit
error (much less plain error) in instructing the jury on the principles
to use in evaluating Pirk’s and Enix’s testimony.

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III. Conclusion
In sum, we hold that the district court’s interested-witness
instructions did not assume the defendants’ guilt or otherwise
undermine the presumption of innocence and were thus not
erroneous. We therefore AFFIRM in part, and, for the reasons stated
in the concurrently filed summary order, VACATE in part the
judgments of the district court, and REMAND the matter for further
proceedings consistent with this opinion and the concurrently filed
summary order.

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