SDNY COURTHOUSE, August 14 – The U.S. government began a trial against three men on May 7 for staged slip and fall accidents and fraudulent lawsuits. But from its first day the trial raised issues about Bloods gang culture, the prosecutors' propensity to use conflicted criminals as witness to go after low hanging fruit, and the potential of having witnessed the 9/11/01 attacks to sway a jury.
The jury late on Thursday, May 23 came out and said they didn't have enough evidence on Counts 2 and 3, but that they had reached an undisclosed decision on Counts 1, 4, 5 and 6.
As Inner City Press published on May 23, this makes the prosecution nervous. If those findings are "guilty," what if just one of the jurors changes their mind between May 23 and Tuesday, May 28 when they will continue to deliberate, under the new or reiterated instruction that Judge Stein gave them?
On May 28, amid Michael Avenatti hypeelsewhere in the SDNY, this: "Verdict reached as follows: as to Count One, all defendants found guilty; as to Counts Four, Five, and Six, defendant Duncan found guilty. The Court finds a mistrial as to Counts 2 and 3 for all defendants. All parties consent to a mistrial on Counts 2 and 3. Bail conditions remain as previously set as to defendants Locust and Rainford with the following added condition: defendants shall have no contact with anyone involved with this trial. Defendant Duncan is released on bail on the same conditions as previously set with the following additional conditions: home confinement with electronic monitoring to begin as soon as possible; no contact with anyone involved with this trial. Sentencing is set for September 10, 2019, at 2:30 p.m. for Duncan, 3:00 p.m. for Locust, and 3:30 p.m. for Rainford."
But now in August, the sentencing for Robert Locust has been pushed back to November. This public letter is only part of the story: "Re: United States v. Robert Locust, 18 Cr. 289 (SHS) Dear Judge Stein: We represent Robert Locust in the above-referenced matter, having been appointed pursuant to the provisions of the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A. On May 28, 2019, following a three-week trial, Mr. Locust was convicted of a single count. Sentencing is scheduled for September 10, 2019. The purpose of this letter is to respectfully request a two-month adjournment of Mr. Locust's sentencing as additional time is needed to prepare. First, the initial draft of the presentence report ("PSR") was disclosed to us on August 1, 2019. We are in the process of drafting our objections. They will be provided to the Department of Probation by the two-week deadline of August 15, 2019. While we believe that the final PSR will be prepared promptly, we will not be able to review the final PSR and discuss with Mr. Locust prior to the date when we are to file our sentencing submission - August 20, 2019. Second, we are in the process of gathering mitigating information from Mr. Locust. Based on conversations with him, we believe that such information will assist the Court in fashioning a sentence that is "sufficient, but not greater than necessary," pursuant to 18 U.S.C. § 3553(a). Accordingly, an adjournment of sentencing is necessary. Based on other personal and professional responsibilities, we respectfully request an adjournment of sentencing until November. I have discussed this Application with AUSA Alexandra Rothman and the Government does not object." What did they know, and when did they know it? Watch this site.
Speaking of hype, despite the use of Bloods members as government witnesses and the failure to date to go after the financiers of the scam, this: "Manhattan U.S. Attorney Geoffrey S. Berman said: “Bryan Duncan, Robert Locust, and Ryan Rainford carried out a blatantly corrupt scheme, recruiting ‘patients,’ coaching them on how to stage trip-and-fall ‘accidents’ that were not accidents at all, and steering them to complicit lawyers, chiropractors, and doctors. They recruited indigent people, including from homeless shelters – people they thought would be most willing to undergo unneeded surgeries for the minimal cut of the proceeds the defendants would share. Duncan, Locust, and Rainford were tripped up by the justice system and have met their downfall.” And a tweet: "@SDNYnews USA Berman: Bryan Duncan, Robert Locust, and Ryan Rainford were tripped up by the justice system and have met their downfall." Tripped up? We'll have more on this.
The U.S. Attorney's Office, on Memorial Day, wrote to Judge Stein: "The Government respectfully writes in the above-captioned matter to request that, when the jury resumes its deliberations on Tuesday, May 28, 2019, the Court advise the jury that it may return a partial verdict as to any counts and any defendants on which it has reached unanimity... In a jury note dated May 23, 2019, which was read into the record at 3:10 p.m. and subsequently labeled Court Exhibit 10, the jury foreperson wrote the following: “We are unable to reach a unanimous verdict on Count Two and Count Three. Counts One, Four, Five and Six we have reached a verdict.” (Tr. 1891:19-23 (emphasis added).) In response to this note, the Court informed the jury, among other things, to “continue your deliberations in order to see if you are able to reach a verdict on all counts.” (Tr. 1893:22-23.) A few hours later, in a jury note which was read into the record at 4:55 p.m. and subsequently labeled Court Exhibit 11, the jury foreperson wrote the following: “We are prepared to meet again on Tuesday. We are obligated to inform you that on Counts Two and Three, we will not -- underlined -- be able to reach unanimous verdicts. There was not sufficient evidence to reach a unanimous decision.” (Tr. 1894:6-10.) In response to this note, the Government requested that the Court advise the jury that it could deliver a partial verdict, if it so wished. The Court denied the Government’s request on the grounds that the jury “ha[s] not asked for a partial verdict.” (Tr. 1897:23-24.) " Yes, nervous. Watch this site.
On the afternoon of May 22 the jury had sent out two notes. The first said that Juror Number Eight had been elected the foreperson. The second made requests: for Bryan Duncan's WhatsApp and text messages, for definitions including aiding and abetting, and for the witness list.
The prosecutors said they would prepare the list. Duncan's lawyer Ikiesha T. Al-Shabazz said, There is no list - which is true, as a follower of the docket on PACER - and that the government should not be permitted to send back a list with all the witnesses they might have called, only those that were in fact called. But wouldn't the jury have remembered who testified? We'll have more on this.
Back on May 21, Assistant US Attorney Alexandra Rothman in her summation to the jury relied on the testimony of (Bloods member) Reginald Dewitt, and to jotting by the slip and fall fraud doctor Kalkanis. She emphasized that Clarence Tucker knew that Robert Locust fixed computers. Doesn't this undermine the argument that Locust is a big enough fish to justify this Federal prosecution, using the witnesses it has? We'll have more on this.
On May 20 the U.S. Attorney's office put on the witness stand one of its paralegals and message extracters, Ariella Fetman, to read Bryan Duncan's parts from his text exchanges with Patient Walker, who said he was homeless and needed money for a room after his surgery. The Assistant U.S. Attorney was reading Walker's text messages, with lines like "Are you serious, my N-word?" There were objections before the reading, and during. Judge Stein asked the government, are you closing today? Things are coming to a close. Watch this site.
Back on May 16 after a three day break, Doctor Peter Kalkanis, more responsible for the scheme than the drivers, was being walked though his testimony by Assistant U.S. Attorney Alexandra Rothman. He explained how the unneeded surgeries cost $18,000.
This money was lent by finance companies at terms he called predatory - but he too took his fee. Those getting the unneeded surgeries were paid $1000. Kalkanis estimated he made some $2 million from the scheme.
On May 17 under cross examination by Duncan's lawyer Ikiesha T. Al-Shabazz, Kankanis starting naming finance companies: Fast Track, Golden Pair, Sunset Management Funding." Ms. Al-Shabazz asked him to distinguish patients, which Duncan was in 2012, from drivers which he became, from what Kalkanis called "runners." Kalkanis said that Raymond Christmas was a patient who was later paid $50 to $100 for referrals, on a matrix. Christmas referred his cases to Rasul a/k/a Reginald Dewitt, the government's witness. Kalkanis remembered the name Victor Faison and even how to spell it - but not if his case was fake or not. He offered to start naming "troublemakers."
May 17 ended with the cross examination of government witness Martin, who pre-programmed his iPhone to drop the "c" from faxt and fuxk and refused to way the N-word although he wrote it in his WhatsApp text messages with Bryan Duncan. The latter came up because Martin got into dramatic readings of the texts, first with prosecutor Alexandra Rothman (they had rehearsed, he said, on Monday or Tuesday when the jury did not sit) then with Duncan's attorney Ms. Al-Shabazz.
Things got testy, with Martin saying "Next question" and coughing loudly to show he was sick. How the jury will take this is not clear. Summations are set for Tuesday, May 21. We'll have more on this, and on this: why is it the drivers being prosecuted? Inner City Press will continue to follow this trial.
In open arguments before U.S. District Court for the Southern District of New York Judge Sidney H. Stein the lawyer for defendant Robert Locust, Mitchell Dinnerstein, told the jury to expect to see on the stand a well dressed doctor who had led the scheme, Peter Kalkanis. (Judge Stein retorted that Dinnerstein himself was well dressed.)
On May 9 there was a dapper gentleman out in the hall outside Courtroom 23A. Inner City Press was told he was none other than Kalkanis, but that he will only go on the stand late on Friday, with the jury then not sitting early next week by the judge's decision. Some joked, it is a try-out of Kalkanis as a witness? Will he appear dressed down in a sweat suit?
At day's end Inner City Press spoke with defendant Locust, who shaking his head said the government had just made sh*t up about him, and tried to entrap him into committing some violence. A lawyer in the case told Inner City Press it was unclear if "Bloods witness" Reginald Dewitt is in fact in custody; two government agents appears to be assigned to him. More and more questions are arising.
On May 7 the lawyer for incarcerated defendant Bryan Duncan, Ikeisha T. Al-Shabazz, argued that U.S. Attorney Geoffrey S. Berman's office is going after the "low hanging fruit." She might have added, "using a Bloods member to do it."
On May 8 Reginald Dewitt a/k/a Rasul was on the stand for cross examination. Dinnersteinasked Dewitt about the time he got maced by the mother of his 10 year old daughter, who he brought home late after drinking, he said, three beers. He later evaded a question by saying, I was drunk and fishing a lot.
Dewitt proceeded to say he earned only $10,000 to $15,000 dollars from sixty fake slip and fall cases, and that he didn't remember agreeing in writing with the government in June 2017 to wear a wire. Judge Stein did not allow Dinnerstein to show Dewitt the 3500 material, saying Dewitt had already denied it. Falsely?
Dinnerstein made a point of getting Dewitt to name the prosecutor and FBI agent he had met with -- "Nick and Rick" -- then emphasizing how close Dewitt had gotten with them. Judge Stein then made a point of telling "Mitch" to proceed. It's that kind of trial. And this kind: the government is seeking to use as Witness-9 a man who worked as a pimp including for a prostitute who was a minor." And the government wants to limit cross examination on this, as opposed by Ryan Rainford's lawyer Calvin H. Scholar. So the US is using a Bloods member and a pimp of a child to go after drivers for a slip and fall fraud scheme?
Back on May 7, Berman's Assistant U.S. Attorney Alexandra Rothman objected to the phrase, or perhaps only the word "hanging." Judge Stein sustained the objection, saying "I don't even know what that means," and told Ms. Al-Shabazz to move on.
Likewise when Dinnerstein asked of one of the lawyers involved in the slip and fall lawsuit, "Where's George?" Judge Stein stopped him and told the jury, "What law enforcement does is not of concern to this case."
Later Judge Stein told Dinnerstein, with the jury out on a ten minute break, "You are not in the good graces of the court. I'm surprised at you." He told the group of seven lawyers that it had been a "very sloppy opening" and then asked why the witnesses mentioned in motions filed with him were not named.
One of the witnesses whose WhatsApp messages with Duncan will be admitted into evidence has a pattern, Ms. Al-Shabazz argued, of replacing all c's with k's. She filed with Judge Stein a copy of a New York City Police Department "General Gang Rules" for the Bloods, which lists as Rule 26 "Always cross out your C's" - because Crips begins with C. Judge Stein said he will allow it.
Another witness with mental issues relates those back to what he saw on September 11, 2001. The defense says this will sway the jury to the witness' side. On these and other questions, Judge Stein said the scope of cross examination will be decided as the trial goes forward.
Judge Stein told the jury not to read press coverage about the case, while predicting there would be no press coverage of it. But why then are there three separate Assistant U.S. Attorneys on the case, two marshals shepherding Duncan in and out of the courtroom even during breaks, and rulings to keep out information about the lawyers and funding companies behind this slip and fall fraud scheme? Inner City Press will continue to cover this trial. More on Patreon, here. The case is U.S. v. Bryan Duncan, et al., 18-cr-00289 (Stein).
