SDNY COURTHOUSE, August 26 -- Frank Barbaccia gave ten glassine envelopes of "King Death" heroin laced with fentanyl to Lauren McKenna on November 26, 2016. She was found dead the next morning by her parents, who attended Barbaccia's sentencing to a mere 27 months in prison on August 23, 2019 before US District Court for the Southern District of New York Judge Gregory W. Woods.
Inner City Press was the only media in Judge Woods' courtroom for the sentencing and reported on it. In the three days since it has continued to write about and look into this seeming miscarriage of justice.
A relative of the decedent tells Inner City Press that the family was not aware of the plea deal that the US Attorney's Office was going to be offering to Barbaccia. Furthermore that Barbaccia bought the deadly heroin with fentanyl from a dealer in Washington Heights, Jacinto Garcia a/k/a Cuba, who pleaded guilty before SDNY Magistrate Judge Katherine H. Parker on June 12, 2019.
That is in a separate case that is before SDNY Chief Judge Colleen McMahon. It is in that case that Jacinto Garcia is referred to as "Cuba." In the Barbaccia / McKenna case there is a reference to buying heroin from "Cubs" in Washington Heights. Then there are a slew of sealed documents in the case before Judge McMahon, and redactions in the Barbaccia / McKenna case. As of August 26, Garcia's June 12 plea transcript is still not in PACER. We'll have more on this. More on Patreon, here.
On August 23 Judge Woods apologized to McKenna's family in the gallery, including her brother, niece and uncle. He said he could only sentence for the charges the U.S. Attorney for the SDNY had chosen to pursue: in this case, merely the sale of 10 glassines of heroin.
Why, unlike in other cases in the SDNY, was Barbaccia not put on trial for the death of Lauren McKenna? It began with the Rockland County Medical Examiner's finding that other substances, like Xanax and alcohol, might have contributed to Lauren McKenna's death. But this is what contemporaneous defendant Michael Jones is arguing, so far to no avail.
Barbaccia was previously changed with "disturbing human remains," apparently for dumping the body of Lauren McKenna's previous significant other after "the decedant overdosed inside the defendant's vehicle. Law enforcement found the decedant dead on the side of the road the next day."
That's from the sentencing submission of Assistant US Attorney Michael C. McGinnis. In fairness, McGinnis seemed genuinely concerned about Lauren McKenna's family, helping them with their victim impact statements. It is probably not he who makes the charging decisions and plea deal offers. So who is responsible?
Judge Woods, too, made a point of calling Barbaccia's conduct repugnant. Perhaps as a matter of law he is correct that he could only sentence Barbaccia for what the US Attorney chose to charge and Barbaccia pleaded guilty to. But when, then, would an upward variance be appropriate?
Three stories above in 500 Pearl Street, a defendant was recently put on notice that an upward departure is being considered. Why was that not done here? Inner City Press, the only media in Judge Woods' court room on August 23, hopes to have more on this.
Back on August 20 a jury returned guilty verdicts on drugs and gun charges against Ernest Murphy, one of 15 defendants in a Brooklyn-based narcotics conspiracy case brought by the U.S. Attorney for the Southern District of New York.
It came after some electronic and laboratory evidence was suppressed by Circuit Judge Richard J. Sullivan, who rather than re-assigning has kept many of his criminal cases in the SDNY.
Murphy's two Criminal Justice Act lawyers, Patrick Joyce and Robert Moore, complained to Judge Sullivan on the eve of trial that they had only then been given 16 gigabytes of audio and video recordings and lab tests on crack cocaine.
Rather than delay the trial, Judge Sullivan ordered much of it suppressed. During the five day trial the government still had a number of NYPD lab technicians testimony, and played wiretaps of cell phone calls and calls from Riker's Island, whose location in The Bronx was cited as a basis for venue in the SDNY.
In the intercepted calls, there was discussion of cooking, packaging and selling crack cocaine. Several times reference was made to bringing firearms to protect turf. A government slang expert witness said that "Shaquille" jersey meant .32 caliber pistol.
After the jury got the case, they asked to examine the drugs. Judge Sullivan declined to send the crack and ecstacy pills into the jury room. Instead the juror came out and passed them hand to hand, in evidence bags, in the jury box.
On the second day of deliberations the jury through the Court Security Officer passed a note that they wanted all audio recordings and transcripts. Judge Sullivan sent them in a thumb drive and three binders, as well as a menu to order lunch.
But barely an hour later, the jury returned with its guilty verdicts. Judge Sullivan polled them, sent December 6 as the sentencing date - Murphy faces a minimum of 15 years in prison and perhaps more - then joined the jurors for their lunch. The case is US v. Ernest Murphy,18-cr-373 (Sullivan).
The US Attorney's Office, which had sent senior AUSA Michael D. Maimin over to try to put out the fire occasioned by the late discovery, must have breathed a sigh of relief. Inner City Press will continue to cover this case - and, we hope, Judge Sullivan's sentencing in another case he kept, US v. Rodriguez (05-cr-221), which the government is asking, under seal, to have sealed. Watch this site.
