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AO 91 (Rev. 02/09) Criminal Complaint

U nilted Sltaltes Disltriclt

for the
Western District of New York

United States of America

Case No. 15-M-

v.

'2.0?/

ROBERT ELOFF, JR.

Defendant

CRIMINAL COMPLAINT
I, the complainant in this case, state that the following is true to the best of my knowledge and
belief.
On or about the date(s) of February 15, 2014, and May 11, 2014, in the County of Erie in the
Western District of New York, the defendant,
While acting under color of law on February 15, 2014, did willfully deprive a person of the right
secured and protected by the Constitution and laws of the United States to be free from the use of
unreasonable force by a police officer, resulting in pain and bodily injury to the person; and
While acting under color of law on May 11, 2014, did willfully deprive a person of the right
secured and protected by the Constitution and laws of the United States to be free from unreasonable
seizure by one acting under color of law, which includes the right to be free from arrest without probable
cause, and did conspire to do so;
all in violation of Title 18, United States Code, Sections 241 and 242.
This Criminal Complaint is based on these facts:
IZI Continued on the attached sheet.

JENNIFER J. AMO, Special Agent, FBI

Printed name and title

Sworn to before me and signed in my presence."'

>3f~
\,_,,

City and State: Buffalo, New York

HUGH B. SCOTT
United States Magistrate Judge
Printed name and title

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AFFIDAVIT IN SUPPORT OF A CRIMINAL COMPLAINT

STATE OF NEW YORK )

COUNTY OF ERIE
)
CITY OF BUFFALO
)

SS:

JENNIFER J. AMO, being duly sworn, deposes and says:

1.

I am a Special Agent with the Federal Bureau oflnvestigation ("FBI"). I have

been a Special Agent with the FBI for approximately sixteen years. I am currently assigned
to the Violent Crimes Against Children Squad in the Buffalo Division of the FBI and
investigate, among other things, Civil Rights violations. Prior to that, I was assigned to the
White Collar Crime Squad in Buffalo, where in addition to Civil Rights violations, I
investigated Human Trafficking. Prior to working in the Buffalo Division, I worked in the
Los Angeles Division of the FBI for six years, where I investigated Eurasian Organized
Crime matters. During the course of my employment with the FBI, I have participated in the
execution of numerous arrest warrants.

2.

This affidavit is submitted in support of the application by the United States for

a complaint and warrant charging ROBERT ELOFF, JR. ("ELOFF"), the defendant, with
the following:

(a) On or about February 15, 2014, in the Western District of New York, ROBERT
ELOFF, JR., the defendant herein, a police officer with the City of Buffalo Police

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Department (BPD), while acting under color of law, used his position as a police officer to
strike and kick R.D. on his head and face, while R.D. was handcuffed behind his back and
physically compliant, thereby willfully depriving R.D. of a right secured and protected by the
United States Constitution, that is, the right to be free from an unreasonable use of force by a
law enforcement officer, resulting in pain and bodily injury to R.D., in violation of Title 18,
U.S.C., Section 242.

(b) On or about May 11, 2014, in the Western District of New York, ROBERT
ELOFF, JR., the defendant herein, a police officer with the BPD, while acting under color of
law, used his position as a police officer to arrest and cause D.H. to be arrested and charged
with trespassing in violation of the New York State Penal Law, a crime the defendant knew
D .H. did not commit, thereby willfully depriving D .H. of a right secured and protected by the
United States Constitution, that is, the right to be free from an unreasonable seizure by one
acting under color oflaw, which includes the right to be free from arrest without probable
cause, in violation of Title 18, U.S.C., Section 242, and did conspire with another to willfully
deprive persons of a right secured and protected by the United States Constitution, that is, the
right to be free from an unreasonable seizure by one acting under color oflaw, which includes
the right to be free from arrest without probable cause, in violation of Title 18, United States
Code, Section 241.

3.

I have been personally involved in the investigation of this matter. During the

course of the investigation, I have participated in interviews of witnesses and reviewed reports
of interviews conducted by other law enforcement personnel and reviewed other pertinent

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evidence related to this investigation. The statements contained herein are based in part on
information provided by other law enforcement personnel, witness interviews, and reports of
these interviews.

Because this affidavit is being submitted for the limited purpose of

establishing probable cause, it does not include all the facts that I have learned during the
course of this investigation. Where the contents of documents and the actions, statements
and conversations of others are reported herein, they are reported in substance and in part. I
have set forth only the facts necessary to establish probable cause to believe that ELOFF has
violated Title 18, U.S.C., Sections 241 and 242.

4.

On November 19, 2007, EL OFF began his employment as a police officer with

the BPD and he has served as a police officer with the BPD since that date. On December 27,
2013, ELOFF was granted permission by the BPD to have additional employment for
security work for the Buffalo Entertainment District which included various locations on
Chippewa Street as well as 3199 Main Street which is the address for Molly's Pub.

VictimR.D.

5.

As part of this investigation, the person hereinafter referred to as R.D. was

interviewed by myself and another special agent of the FBI.

R.D. advised that on

Valentine's Day 2014, he attended an event hosted by a sorority of the State University of
New York at Buffalo which was held at Molly's Pub in Buffalo. At the time, R.D. was also a
student at State University of New York at Buffalo. R.D. attended this event with two
friends, hereinafter referred to as Witness I and Witness 2. Although R.D. was underage, he

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used identification in the name of another person to gain entrance into Molly's Pub. After
midnight, which was February 15, 2014, a friend of R.D.'s was outside of Molly's Pub and
wanted R.D. to come outside and escort her into Molly's Pub. R.D. went outside, met his
friend and attempted to re-enter Molly's Pub. A bouncer asked R.D. for identification, and
even though R.D. told the bouncer that R.D. had already been admitted to the bar, the
bouncer insisted R.D. show identification to re-enter the bar.

6.

After being asked for identification, R.D. reached into his pocket in order to

retrieve the false identification he had previously used to enter the bar. At that point, both
his actual and false identification (driver licenses) fell out of his pocket. The bouncer then
kept R.D.'s false identification and R.D. picked up his actual driver license. The bouncers
then pushed R.D. out of the bar.

7.

According to R.D., after he was thrown out of the bar, he was standing outside

the bar with his back to the bar entrance when a Buffalo Police Department officer,
subsequently identified as ELOFF, approached R.D. At that point, ELOFF was wearing a
long sleeve shirt which said "POLICE" and ELOFF also wore a gun and handcuffs.
According to R.D., there was another officer and possibly a bouncer present at that time.
ELOFF placed R.D. into handcuffs, handcuffing R.D. behind his back, and took R.D. to the
side of the bar. At the side of the bar, the officers took R.D .' s wallet out of his pocket and
found his actual driver license. The officers also asked R.D. questions along the lines of
what is your name and where do you go to school as well as questions regarding his false
identification. R.D. stated he did not respond to the questions or say anything but simply

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put his head down. According to R.D., he believed that the officers already knew his name
from his driver license.

8.

According to R.D., after he did not answer the officers' questions, ELOFF got

angry and punched R.D. in the right eye while he was handcuffed. R.D. then slipped and
fell and someone pushed him towards a snow bank on the ground. ELOFF then put his
knee on R.D.'s head and an officer kicked R.D. in the head. According to R.D., ELOFF
was getting "pissed". ELOFF told R.D. that ELOFF was going to wait for an ambulance
but then gave R.D. a napkin and told him to get "out of here". After about 5 minutes,
ELOFF told another officer to "take him". R.D. said at that point there was blood on his
shirt from the assault by ELOFF.

9.

R.D. was taken by other officers to the Erie County Holding Center and

charged with trespassing, false personation and criminal impersonation. According to R.D.,
he pied guilty to disorderly conduct, in satisfaction of these charges. R.D.'s booking photo
shows abrasions on the left side of his face as well as abrasions, primarily around the eye on
the right side of his face. Photographs taken ofR.D. later on the day of his arrest also show
abrasions from the hairline to the chin on the left side of his face and abrasions around his
right eye.

10.

As part of this investigation, myself and another special agent of the FBI

interviewed the person hereinafter referred to as Witness 1. According to Witness 1, he was

with R.D. at the Valentine's Day 2014 event at Molly's Pub. According to Witness 1, there

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were two police officers working security at Molly's Pub that night, both of whom were
wearing jackets that said "POLICE", had their badges exposed, and their guns on their sides.
One of the officers was identified as ELOFF. When R.D.'s friend arrived at Molly's Pub
and wanted an escort into the bar, Witness 1, Witness 2 and R.D. left the bar and went
outside to escort the friend into the bar. When they tried to re-enter the bar, Witness I and
Witness 2 were readmitted into the bar. Witness I saw R.D. attempt to retrieve his false
identification from his wallet and R.D. 's actual driver license falling to the ground.
According to Witness I, at that point officers pulled R.D. around the corner of the bar and
handcuffed him. While R.D. was in handcuffs, ELOFF punched R.D. in the face and R.D.
fell down. While R.D. was down, ELOFF kicked R.D. During the assault, R.D. was
screaming "stop". According to Witness I, R.D. was not resisting, and did not take a swing
at the officers. According to Witness 1, Witness 2, using his cellphone, made a recording of
what ELOFF did to R.D. Another officer made Witness 2 delete the video from his phone.

11.

Witness 2 was able to take two photographs of the events of the evening which

were provided to the Buffalo Police Department and obtained by myself.

One of the

photographs shows R.D. lying face-first on the ground with his hands handcuffed behind his
back. A person identified as ELOFF is shown kneeling with his lower leg on the upper left
arm and shoulder ofR.D. There are a set of handcuffs hanging from ELOFF's belt and he is
wearing a jacket or shirt with "POLICE" on the back. The color of ELOFF's clothing is
consistent with the blue color of a BPD uniform. The photograph also shows another officer
standing to the side ofR.D. as well as an employee of Molly's Pub standing near R.D.'s feet.
Another photograph from Witness 2's cellphone was taken inside Molly's Pub and is

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somewhat dark. The photograph shows ELOFF standing inside the bar talking with a
female patron. ELOFF appears to be wearing a BPD uniform shirt or jacket and is wearing
a firearm on his right hip.

12.

Based on the foregoing events, I submit that there is a probable cause to believe

that ELOFF willfully deprived R.D. of the right secured and protected by the Constitution
and laws of the United States to be free from the use of unreasonable force by a police officer
in that the assault of R.D. by ELOFF occurred while R.D. was handcuffed behind his back,
was physically compliant with ELOFF and the other officer, and posed no risk to the safety of
ELOFF and the other officer.

VictimD.H.

13.

On May 11, 2014, at approximately 1:37 a.m., William Sager was pushed

down a flight of stairs at Molly's Pub by Jeffrey Basil. Sager later died of the injuries he
sustained and Basil has since been convicted of murder for his actions. At the time Sager
was pushed by Basil, ELOFF and BPD Officer Adam O'Shei were in Molly's Pub, either
working, or having completed a shift working, as security for the bar.

14.

As part of this investigation, Victim D.H. was interviewed by the undersigned

and another special agent of the Federal Bureau of Investigation. During the interview,
D.H. stated that he was with Sager in Molly's Pub prior to Sager being pushed down the
stairs.

While in the bar, D.H. had a short conversation with ELOFF and O'Shei.

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According to D.H., both ELOFF and O'Shei were wearing shirts with BPD insignia. After
D.H. saw Sager fall down the stairs, D.H. saw people carry Sager outside the bar.

15.

When D.H. got outside of the bar, Sager was propped up, sitting on the ground

outside the bar. When D.H. got outside, he was asking the officers what had just happened
and ELOFF grabbed D.H. and told D.H. to get out of there. D.H. then walked towards the
sidewalk and called 911. According to D.H.,, when other officers arrived in a police car,
D.H. told the officers he wanted ELOFF's name and badge number. According to D.H., at
that point ELOFF put handcuffs on D.H. and walked D.H. over to where Sager was seated
and sat D.H. down next to Sager. D.H. said he kept asking the officer why he had been
arrested. D .H. was later taken from the scene by two other police officers and charged with
trespassing.

16.

The information filed against D.H., charged him with criminal trespass in the

third degree, "In that the defendant 3201 Main St. did knowingly enter and remain
unlawfully in a building or upon real property which is fenced or otherwise enclosed in a
manner designed to exclude intruders in that the defendant was told by off duty Off Robert
Eloff to leave the above mentioned property.

Defendant refused to do so. [sic]" This

charge was dismissed on or about May 20, 2014.

17.

A BPD Lieutenant who arrived on the scene after Sager was pushed down the

stairs, filed a report that "I was informed by off duty PO Robert Eloff as well as staff members
of the establishment that the victim [Sager] had become involved in an altercation in the bar

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and had fallen down the stairs inside the bar. PO Eloff also informed me that the second
subject [D.H.] had become belligerent and refused to leave the bar and that management
would like him arrested for criminal trespass." The lieutenant was later interviewed by a
special agent of the Federal Bureau of Investigation. The lieutenant stated that when he
arrived in the vicinity of Molly's Pub, the lieutenant was told by ELOFF that after Sager had
fallen down the stairs, D.H. kept interfering with ELOFF and O'Shei inside the bar.
ELOFF told the lieutenant in sum and substance that D.H. pushed or jumped on the back of
ELOFF while ELOFF and O'Shei were attempting to deal with Sager. The lieutenant
recalled specifically that ELOFF stated although D.H. was told to, he would not leave the
bar. Based on the information provided by ELOFF, the lieutenant directed two other police
officers to charge D.H. with trespass for refusing to leave Molly's Pub.

18.

When the lieutenant first arrived at the scene, both D.H. and Sager were

handcuffed and Sager was unconscious. Investigation has determined that Sager was put in
handcuffs by ELOFF after Basil told ELOFF Basil wanted Sager arrested. The handcuffs
were eventually removed and no charges were ever filed against Sager. In a statement given
by O'Shei to the Erie County District Attorney's Office on May 15, 2014, O'Shei stated that
once Sager was brought outside the bar, Basil was screaming that Basil wanted Sager
arrested, as O'Shei recalled, for assault. O'Shei further stated that while he did see
interactions between Sager and Basil before Sager was pushed down the stairs, O'Shei did not
see Sager assault Basil.

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19.

As part of the investigation conducted by the BPD into the death of Sager,

surveillance video from Molly's Pub was recovered. The video consists of recordings made
by various cameras inside and outside the premises of Molly's Pub. The video shows that at
approximately 1:37 a.m., Sager landed at the foot of a flight of stairs inside of the bar.
Shortly thereafter, O'Shei and two other apparent employees of the bar, took ahold of Sager
and carried him out the front door. ELOFF and Basil followed shortly behind the others
and Sager. The camera covering the door of the bar shows Sager being carried out of the bar
and ELOFF and Basil following closely behind. Approximately a minute or so later, D .H. is
shown coming down the flight of stairs and proceeding out the door of the bar. Shortly after
Sager was brought outside, ELOFF is also seen handcuffing Sager as Sager was sitting in
front of the bar. At no time while leaving the bar did D.H. have any contact with ELOFF
(which would have been impossible since ELOFF was already outside the bar). The camera
covering a parking lot and the front of the bar shows that when D .H. exited the bar, Sager was
already outside the bar as were O'Shei and ELOFF. The camera shows D.H. engaging in
conversation with O'Shei and ELOFF and being directed away from Sager by ELOFF. The
parking lot and front area of Molly's Pub are not fenced in or enclosed in any way designed to
exclude intruders. After approximately 10 minutes or so, ELOFF and D.H. are down the
street away from Molly's Pub and shortly thereafter, ELOFF is seen escorting D.H. back to
Molly's Pub with D .H. having his hands handcuffed behind his back.

20.

Upon review of the video recordings of the above events, it is clear that D .H.

never confronted ELOFF and O'Shei while inside Molly's Pub, was never physical with
either officer inside the bar, did not refuse any commands to leave the building ofMolly's Pub

10

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and, while outside the bar, did not physically interfere with ELOFF and was at all times in an
area open to members of the general public.

21.

Based upon the foregoing, I respectfully submit that there is probable

cause to believe that ELOFF willfully deprived D.H. of the right secured and protected by the
Constitution and laws of the United States to be free from unreasonable seizure by one acting
under color oflaw, which includes the right to be free from arrest without probable cause, and
that ELOFF arrested, and caused the arrest of, D .H. for a violation oflaw which ELOFF was
well aware D .H. did not commit and ELOFF provided false information to other officers of
the Buffalo Police Department which caused the arrest of D.H. for a violation he did not
commit. I respectfully submit that there is also probable cause to believe that ELOFF did
conspire with another to willfully deprive persons of a right secured and protected by the
United States Constitution, that is, the right to be free from an unreasonable seizure by one
acting under color oflaw, which includes the right to be free from arrest without probable
cause.

22.

Based upon the foregoing, I respectfully submit that there is probable cause to

believe that ROBERT ELOFF, JR. violated Title 18, U.S.C., Sections 241 and 242,
deprivation of rights under color of law and conspiracy to do so.

WHEREFORE, I respectfully request that this Court issue a Criminal Complaint and
Arrest Warrant for ROBERT ELOFF, JR. so that he can be brought before the Court to
answer for these charges.

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Special Agent
Federal Bureau ofinvestigation

Sworn to before me this - day of April 2015.

B. COTT
ED STATES MAGISTRATE JUDGE

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