SDNY COURTHOUSE, August 17 -- Just before the narcotics conspiracy trial US v. Ernest Murphy began jury selection on Monday, August 12 in the U.S. District Court for the Southern District of New York, Circuit Judge Richard J. Sullivan harshly admonished the SDNY US Attorney's Office for "abject violation of a court order."
Then he proceeded to pick a jury, a process that extended past 5 pm. In these report Inner City Press will omit jurors' names said in open court, and for now that of a cooperating witness whose identify as of this writing is still sealed in the docket, as are proceedings in US v. Rodriguez.
Thoughout this trial and case, some have wondered why a narcotics conspiracy in Bedford Stuyvesant, Brooklyn is being prosecuted in the SDNY and not the EDNY. On August 17, after a charging conference some of which Inner City Press attended until the end-game or post conference reflected was amiably declared off the record by Judge Sullivan, the US - not 17-trial senior AUSA Michael Maimin who represented the government at the conference but AUSA Karin Portlock wrote:
"A phone call (or text message) involving the defendant or a co-conspirator to or from a particular district can constitute an overt act in that district, so long as the call in any way attempts to further the conspiracy, irrespective of whether the other party to the call is a co-conspirator. See, e.g., United States v. Friedman, 998 F.2d 53, 57 (2d Cir. 1993) (“The phone calls alone [to the Southern District of New York in order to plan a robbery] establish … venue in the Southern District of New York”); Smith, 198 F.3d at 382 (holding that the direction of the phone call or other communication is irrelevant for venue purposes); United States v. Abdallah, 528 F. App’x 79, 81 (2d Cir. 2013) (phone call between the defendant in Texas and a government cooperator in the Eastern District of New York was sufficient to establish venue in the Eastern District of New York); Rommy, 506 F.3d at 122 (“[A] telephone call placed by a government actor within a district to a conspirator outside the district can establish venue within the district provided the conspirator uses the call to further the conspiracy.”); United States v. Kirk Tang Yuk, 885 F.3d 57, 71 (2d Cir. 2018) (“The jury here, therefore, was appropriately instructed by the District Court that venue was proper with respect to a defendant if that defendant used ‘a call or text message [with] … a government cooperator in the Southern District of New York … to further the objectives of the charged conspiracy….’”)." We'll have more on this.
On the afternoon of August 15, the prosecution closed with a series of NYPD criminologists testifying about lab tests of crack, with minimal cross examination. Once the jury left, nearly alone in the courtroom defendant Ernest Murphy told three females in the gallery they should leave; a lone supporter stayed.
When Judge Sullivan told Murphy he need not return tomorrow at 10:30 from the MCC for the charging conference, Murphy through his lawyer Mr. Joyce said that he would not becoming. Judge Sullivan was quoting from the day's transcripts about "the duffel" (gun) and saying that Murphy can, in fact, be charged with it. At the end Judge Sullivan said the sealing of a letter with the name of Maurice Curtis in it is no longer necessary. But still no answer on the impending sealing of US v. Rodriguez, based on request that seem themselves to be sealed...
On the morning of August 15, NYPD Detective Gabriel Echevarria described three moves on the stash house on Decatur Street. First he sent a confidential informant to buy $20 of crack. Then he observed Ernest Murphy going into the basement. Then after getting a warrant he and others went in and arrested Murphy's hapless worker Tyshaun Robinson with crack and a Ruger firearm, sleeping in a small room with a space heater with pilfered electricity. What a life.
Earlier on August 15 the government's "slang expert" Hernandez provided synonyms for heroin including dog food and doggie. Several times Judge Sullivan cut in, cuttingly: "so cooking means cooking? Spot just means location? Three for $25? It's like you're selling underwear." Judge Sullivan looked up. "We need this?" Apparently making his own objection, he said "sustained. Let's move on."
And the trial is moving on - goverment's evidence to finish on August 15, recalled witnesses on August 19 and closings. It's closing in...
On the afternoon of August 14, NYPD Detective Warren repeatedly called pills he photographed at the lab on July 15, 2019 ecstasy despite the lab tests being suppressed due to their late disclosure. After brief testimony by NYPD criminologist Olivia Santiago about an earlier, admissible lab test, and the start of an appearance to span two days by slang expert Hernandez, Murphy's defense lawyer Joyce had an objection.
If the lab tests were suppressed, he said, it was highly prejudicial to let Detective Warren testify about the run up to the tests, including his reference to pills as ecstacy. (The pills included some green ones with dolphins about which cooperating witness Maurice Curtis testified buying on Decatur.)
Judge Sullivan replied that the jury won't necessarily think from what Detective Warren said that the suppressed tests came back positive. But won't they?
While Judge Sullivan has repeated to jurors not to talk with each other about anything in the case, at least two jurors are openly joking with each other in the box, apparently about particular witnesses or developments. Developing, as they say.
Now the government says it will finish with its evidence on August 15. With one juror having a medical procedure upstate on Friday morning, that day will be devoted to the charge conference. Murphy's lawyers will be able to re-call one or more witnesses on Monday (there may be a second one based on video only being produced now). Then the summations...
On August 14 the morning began with Judge Sullivan declining to exclude expert testimony about how crack is packaged for sale. Then cooperating witness Mister Curtis was brought back, just before the delayed jury, with no leg shackles but with two then one U.S. Marshal. He ran through wiretapped phone calls, for most of which a transcript was shown on the video monitor.
Ernest Murphy was and probably still is poetic. He said "after I Twin Tower 'em;" a .32 was described as Shaq's Jersey. But then came the photos of the stash house on Decatur where his worker Tyquan Robinson was arrested and then suspected of being a snitch. (This was the Decatur crib - or brib - "blitz.") His sentencing before Judge Sullivan has been delayed - compare to the hyper Tekashi 6ix9ine / Nine Trey gang case which Inner City Press also covered on August 14, here.
On August 13 the afternoon was devoted to Assistant US Attorney Matthew Hellman questioning cooperating witness Mr. Curtis, mostly by playing him audio wiretaps of phone calls. Some, presumably supporters of the defendants, had come and read along with the transcripts of the calls shown on the video screen installed in Courtroom 15A. There was talk of drugs and a gun stashed in a house with four video cameras.
Inner City Press has requested from the US Attorney's Office access to the exhibits, a response to Judge Sullivan's criticism of their belated disclosure in this case and about another case last year before SDNY Judge Alison Nathan. At day's end on August 13, Judge Sullivan questioned how much expert testimony about slang should come in.
On August 14 government witnesses will including NYPD Detective Billy Warren, to whom Detective James Miles repeatedly referred, his exhibits admitted only "subject to connection." Watch this site.
Before the opening statements on August 13 Judge Sullivan told the jurors that if anyone they know comes into the courtroom to let him know and he might ask the person to leave the courtroom. Then Assistant US Attorney Karin Portlock, in a short opening statement, said after a raid on one of Murphy's stash houses he was arrested entering a Bronx courthouse with 15 bags of crack in his cap.
Defense attorney Joyce in an even shorter opening told the jury to pay particular attention to the DNA evidence in the case.
First witness Detective James Miles described an "abandonment sample" of a cigarette he said was Murphy's. But when asked why he stopped taking photographs of evidence in Murphy's bedroom in 401 Legion Street, Miles said he didn't want to touch the "white rocky substance" because he has kids. Joyce objected.
At one point Judge Sullivan, a former prosecutor, started doing his own questioning of Miles. We'll have more on this.
Without giving names, one prospective juror earlier in the process identified Ralph Avenue as a "low income area," and indicated that he would would not be unbiased regarding the drug charges at issue in this case. Another vocal prospective juror, citing his girlfriend's father having a legal role near San Fransisco, was also let go. But a late arriving juror replacing a sick one, a ran of the Seattle Seahawks, was kept on as an alternate.
Judge Sullivan took the opportunity to wax poetic on the diversity of New York juries. Due to one chosen member it seems even the morning session on Friday, August 16 will not take place. But Judge Sullivan while admonishing all and sundry not to trust or check the Internet predicts the trial will end mid-next week. Watch this site.
As a remedy for the abject violation of a court order, rather than the adjournment requested in writing by both sides over the weekend, Judge Sullivan on August 12 precluded use at the trial of hours of videos and jailhouse telephone calls. It makes the conviction of Murphy less likely; his lawyers switched their request for adjournment to preclusion. How will the US Attorney's Office answer for this? Inner City Press has asked that Office, for access to all exhibits and explanation of sealed proceedings.
On Sunday night before the trial scheduled for Monday morning, Murphy's lawyers Patrick Joyce and Robert Moore wrote to Judge Sullivan "to alert the Court that tomorrow morning we also intend to discuss [that] the late evening of August 10, 2019, the Government provided additional 3500 material to defense counsel via USAfx consisting of 70 phone calls made by the Cooperating Witness while in custody in this case."
Some evidence is being excluded; on other of the calls, defense counsel will be allowed to recall to the stand for cross examination government witness after having next weekend to review the 3500 material. The case is US v. Ernest Murphy, 18-cr-373 (Sullivan).
Also, the US Attorney's Office referred to "lab reports (primarily for reanalysis)—all but one of which we received on Friday and Saturday. We received lab report #5 corresponding to voucher 3000912001 (crack seized from Decatur) on August 1 and apologize for not sending that one along sooner."
Before Judge Sullivan on August 12, apology was not enough. He called it an "abject violation of a court order." But how will it impact the trial? Inner City Press has been covering this and other proceedings before Judge Sullivan, except one which the parties are trying to seal, here. Watch this site.
The government has argued that during the trial, whenever it now begins, the defense should not be allowed to question NYPD witnesses about, among other things, shooting and killing an armed motorist, and the City settling a ranged of cases against them for amounts like $40,000 and $15,000 and at least two substantiated cases before the Civilian Complaint Review Board.
On August 9 Judge Sullivan was set to sentence Murphy's co-defendant Tyquan Robinson. But the sentencing was postponed, for the second day in a row.
Judge Sullivan submitted Assistant US Attorney Matthew Hellman to intense questioning about why Robinson had been allowed to plead guilty to only the gun count, for a 10 year mandatory minimum sentence, and not Count 1, narcotics. He said that others don't get that deal - why Robinson?
Already in the gallery, where Inner City Press was again the only media, Robinson's four family members showed concern, later in one case tears.
Hellman replied that while Robinson maintained the stash house at 672 Decatur Street in Brooklyn it was really a "hovel" ultimately controlled by Murphy, who's set to go on trial Monday. Judge Sullivan repeated this word, hovel - then pointed to Robinson's rap lyrics which Hollman's own sentencing submission had quoted:
"In later music videos, Robinson lionized the shooting as an event which cemented the Boss Crew’s status on the block, and declared, “Talk facts/We don’t fuck with [Victim-1]/That nigga a rat/Broad day so many shots nigga couldn’t throw nothing back.” Id. From this incident and others, Robinson also warned that those who cooperate with law enforcement must be dealt with severely to avoid consequences to one’s crew: “The other niggas stupid/if you shoot a rat off him/If you don’t you gon’ be the only one taking losses.” Additionally, Robinson discussed shootouts on the block controlled by the Boss Crew, stating “So many shootouts man I swear I lost count/but they respect our shit now so I guess it all count.” Id."
Id indeed. Judge Sullivan asked Robinson's defense lawyers James Roth and Benjamin Silverman pointedly if Robinson had since "changed his tune." Roth said if Judge Sullivan was, as had become clear, considering an upward departure above ten years, he must provide notice.
And so a briefing schedule was established: Roth's briefing after vacation due on September 9, the government - without rap, we assume - on September 23, and Roth's reply on September 30. No new sentencing date has been set. Inner City Press will continue covering these cases - and in inquiring about transparency. Watch this site.
As noted this was the second morning in a row a sentencing in this conspiracy got postponed. Judge Sullivan on August 8 was set to sentence Murphy's co-defendant Lloyd Gordon.
Gordon's family has come to the courthouse, initially to 40 Foley Square then to the sign-less Courtroom 15A in 500 Pearl Street Judge Sullivan has been using. But Gordon's lawyer James Kousouros had argued that the government breached its plea agreement by doubling the amount of drugs it alleges, between the plea deal and its reporting to Probation.
First Judge Sullivan asked what the remedy would be, if Kousouros was claiming that he as as the judge was bound by the offense level Assistant US Attorney Karin Portlock had initially agreed to.
While Kousouros, not yet seeing where this was going, answered about unfairness, Judge Sullivan went on to suggest that an evidentiary proceeding known as a Fatico hearing might be necessary.
Soon Gordon was whispering to Kousouros who then said his client wanted to go forward with sentencing today. But it was too late. Judge Sullivan said by challenging the government's doubling of drug weight Kousouros had let a genie out of the bottle and raised "appellate issues."
Judge Sullivan apologized to the family members in the gallery, who by the end were nodding in agreement, that yes a possible difference in sentence between seven years and ten years was important enough not to go off half cocked. So Kousouros' brief, after this two and a a half week vacation, is due on September 6, the government's on September 20. And what of Murphy by then, in his partial sealed trial?
Judge Sullivan earlier on August 8 noted that it is an open courtroom, a strength of our system, anyone can just walk in -- except for US v. Rodriguez, apparently, on which Inner City Press will have more, as well as on the differences between the SDNY's and EDNY's boiler plate plea agreement letters. Watch this site.
Inner City Press will have more on this - see also @InnerCityPress and the new @SDNYLIVE.
