20-622 United States v. Murphy
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 27th day of August, two thousand twenty-one. 4 5 PRESENT: 6 REENA RAGGI, 7 GERARD E. LYNCH, 8 MICHAEL H. PARK, 9 Circuit Judges. 10 _____________________________________ 11 12 UNITED STATES OF AMERICA, 13 14 Appellee, 15 16 v. No. 20-622-cr 17 18 ERNEST MURPHY, AKA PROBLEM G, AKA E, 19 20 Defendant-Appellant, 21 22 Tyshawn Burgess, AKA Ty, AKA Ty Black, Lloyd Gordon, AKA LG, Larry Bayer, AKA 23 L, Kerry Felix, AKA Mack, Devontae Newton, AKA D-Block, AKA Sneeze, Tyrell 24 Sumpter, AKA Rell, AKA Ruger, Maurice Curtis, AKA Mo, Tyquan Robinson, AKA 25 Blacko, Tyreek Ogarro, AKA Reek, Ramal Curtis, AKA Rah, Darren Miller, AKA Dice, 26 AKA Darren Thomas, Kelly Royster, AKA KK, Robert Rhodes, AKA Charlie, Kaemar 27 Wilson, AKA K, 28 29 Defendants. 30 _____________________________________ 1 FOR DEFENDANT-APPELLANT: PATRICK J. JOYCE, Law Offices of Patrick 2 Joyce, New York, NY. 3 4 FOR APPELLEE: MATTHEW J.C. HELLMAN, Assistant United 5 States Attorney (Elinor L. Tarlow, Thomas 6 McKay, Assistant United States Attorneys, 7 on the brief), for Audrey Strauss, United 8 States Attorney for the Southern District of 9 New York, New York, NY. 10 11 Appeal from a judgment of the United States District Court for the Southern District of
12 New York (Sullivan, J., sitting by designation).
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
14 DECREED that the judgment of the district court is AFFIRMED.
15 A grand jury indicted Ernest Murphy and fourteen codefendants for offenses related to
16 their participation in a drug crew that held territory in the Bedford-Stuyvesant neighborhood of
17 Brooklyn. The fourteen codefendants all pled guilty, but Murphy went to trial. A jury found
18 Murphy guilty of both charged counts: (1) conspiring to distribute at least 280 grams of cocaine
19 base (crack cocaine) and a “detectable amount” of heroin, 21 U.S.C §§ 846, 841(b)(1)(A),
20 841(b)(1)(C), and (2) possessing a firearm in furtherance of the narcotics conspiracy, 18 U.S.C.
21 §§ 924(c)(1)(A)(i), 2. The district court sentenced Murphy to 200 months’ imprisonment on the
22 first count and 60 months’ imprisonment on the second court, to run consecutively. Murphy now
23 appeals from that judgment. We assume the parties’ familiarity with the underlying facts,
24 procedural history, and issues on appeal.
25 1. Evidentiary Rulings
26 Murphy takes issue with two of the district court’s evidentiary rulings, which we review
27 for abuse of discretion. United States v. Quinones, 511 F.3d 289, 307 (2d Cir. 2007). “To find
28 such abuse, we must conclude that the challenged evidentiary rulings were arbitrary and
2 1 irrational.” Id. at 307–08 (internal quotation marks omitted); see also United States v. Figueroa,
2 548 F.3d 222, 226–27 (2d Cir. 2008) (applying standard to Confrontation Clause rulings).
3 a. 2013 Firearm
4 Murphy first argues that the district court abused its discretion by admitting evidence of a
5 2013 shooting of which Murphy was acquitted, evidence that Murphy contends is both irrelevant
6 and prejudicial. See Fed. R. Evid. 402, 403. But the district court excluded nearly all of the
7 evidence—and all of the direct evidence—of the 2013 shooting that the government sought to
8 introduce, including ballistics, DNA, and the firearm itself. Murphy thus challenges only a single
9 reference at trial to the firearm used in the 2013 shooting. Specifically, in 2018, police recorded
10 two of the coconspirators discussing whether another coconspirator had “ratted” to law
11 enforcement and whether the other conspirators, including Murphy, should “cut” him. During that
12 discussion, the conspirators referenced a threat made by Murphy in 2013, prior to Murphy’s
13 involvement in the charged conspiracy, to “cut” another defendant, who had failed to carry out
14 Murphy’s order to retrieve the gun used in the 2013 shooting. The district court admitted the 2018
15 phone recording and, for context, allowed testimony from the cooperating witness (“CW”) on two
16 “narrow subjects”: Murphy’s “request that a co-defendant retrieve a firearm in 2013” and his
17 “subsequent threat of repercussions after the co-defendant failed to do so.” App’x at 295–96.
18 “We have held repeatedly that it is within the court’s discretion to admit evidence of prior
19 acts to inform the jury of the background of the conspiracy charged . . . or to explain the mutual
20 trust that existed between coconspirators.” United States v. Rosa, 11 F.3d 315, 334 (2d Cir. 1993).
21 And here, the testimony’s probative value was not “substantially outweighed by a danger of . . .
22 unfair prejudice.” Fed. R. Evid. 403. The district court permitted only questioning that carefully
23 avoided any implication about why Murphy wanted the gun—i.e., the 2013 shooting of which he
3 1 was acquitted. The district court also clearly instructed the jury not to consider evidence of the
2 2013 firearm “as proof that the defendant has a criminal personality or bad character,” App’x at
3 1413–14, and Murphy offers no reason to believe that the jury did not follow that instruction. See
4 United States v. Downing, 297 F.3d 52, 59 (2d Cir. 2002) (“Absent evidence to the contrary, we
5 must presume that juries understand and abide by a district court’s limiting instructions”). The
6 admission of testimony contextualizing the 2018 phone recording was an appropriate exercise of
7 the district court’s discretion.
8 b. Cooperating Witness’s Juvenile Criminal History
9 The government sought to preclude cross-examination of the CW about a sealed 2010
10 juvenile adjudication against him for rape and kidnapping (or aiding and abetting the same), an
11 offense for which the underlying records had been partially destroyed. The district court agreed
12 and precluded the line of questioning. Murphy contends that this violated his Sixth Amendment
13 right to “confront[] . . . witnesses against him.” U.S. Const. amend. VI.
14 Murphy argues that cross-examination on the juvenile adjudication would allow him to
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20-622 United States v. Murphy
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 27th day of August, two thousand twenty-one. 4 5 PRESENT: 6 REENA RAGGI, 7 GERARD E. LYNCH, 8 MICHAEL H. PARK, 9 Circuit Judges. 10 _____________________________________ 11 12 UNITED STATES OF AMERICA, 13 14 Appellee, 15 16 v. No. 20-622-cr 17 18 ERNEST MURPHY, AKA PROBLEM G, AKA E, 19 20 Defendant-Appellant, 21 22 Tyshawn Burgess, AKA Ty, AKA Ty Black, Lloyd Gordon, AKA LG, Larry Bayer, AKA 23 L, Kerry Felix, AKA Mack, Devontae Newton, AKA D-Block, AKA Sneeze, Tyrell 24 Sumpter, AKA Rell, AKA Ruger, Maurice Curtis, AKA Mo, Tyquan Robinson, AKA 25 Blacko, Tyreek Ogarro, AKA Reek, Ramal Curtis, AKA Rah, Darren Miller, AKA Dice, 26 AKA Darren Thomas, Kelly Royster, AKA KK, Robert Rhodes, AKA Charlie, Kaemar 27 Wilson, AKA K, 28 29 Defendants. 30 _____________________________________ 1 FOR DEFENDANT-APPELLANT: PATRICK J. JOYCE, Law Offices of Patrick 2 Joyce, New York, NY. 3 4 FOR APPELLEE: MATTHEW J.C. HELLMAN, Assistant United 5 States Attorney (Elinor L. Tarlow, Thomas 6 McKay, Assistant United States Attorneys, 7 on the brief), for Audrey Strauss, United 8 States Attorney for the Southern District of 9 New York, New York, NY. 10 11 Appeal from a judgment of the United States District Court for the Southern District of
12 New York (Sullivan, J., sitting by designation).
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
14 DECREED that the judgment of the district court is AFFIRMED.
15 A grand jury indicted Ernest Murphy and fourteen codefendants for offenses related to
16 their participation in a drug crew that held territory in the Bedford-Stuyvesant neighborhood of
17 Brooklyn. The fourteen codefendants all pled guilty, but Murphy went to trial. A jury found
18 Murphy guilty of both charged counts: (1) conspiring to distribute at least 280 grams of cocaine
19 base (crack cocaine) and a “detectable amount” of heroin, 21 U.S.C §§ 846, 841(b)(1)(A),
20 841(b)(1)(C), and (2) possessing a firearm in furtherance of the narcotics conspiracy, 18 U.S.C.
21 §§ 924(c)(1)(A)(i), 2. The district court sentenced Murphy to 200 months’ imprisonment on the
22 first count and 60 months’ imprisonment on the second court, to run consecutively. Murphy now
23 appeals from that judgment. We assume the parties’ familiarity with the underlying facts,
24 procedural history, and issues on appeal.
25 1. Evidentiary Rulings
26 Murphy takes issue with two of the district court’s evidentiary rulings, which we review
27 for abuse of discretion. United States v. Quinones, 511 F.3d 289, 307 (2d Cir. 2007). “To find
28 such abuse, we must conclude that the challenged evidentiary rulings were arbitrary and
2 1 irrational.” Id. at 307–08 (internal quotation marks omitted); see also United States v. Figueroa,
2 548 F.3d 222, 226–27 (2d Cir. 2008) (applying standard to Confrontation Clause rulings).
3 a. 2013 Firearm
4 Murphy first argues that the district court abused its discretion by admitting evidence of a
5 2013 shooting of which Murphy was acquitted, evidence that Murphy contends is both irrelevant
6 and prejudicial. See Fed. R. Evid. 402, 403. But the district court excluded nearly all of the
7 evidence—and all of the direct evidence—of the 2013 shooting that the government sought to
8 introduce, including ballistics, DNA, and the firearm itself. Murphy thus challenges only a single
9 reference at trial to the firearm used in the 2013 shooting. Specifically, in 2018, police recorded
10 two of the coconspirators discussing whether another coconspirator had “ratted” to law
11 enforcement and whether the other conspirators, including Murphy, should “cut” him. During that
12 discussion, the conspirators referenced a threat made by Murphy in 2013, prior to Murphy’s
13 involvement in the charged conspiracy, to “cut” another defendant, who had failed to carry out
14 Murphy’s order to retrieve the gun used in the 2013 shooting. The district court admitted the 2018
15 phone recording and, for context, allowed testimony from the cooperating witness (“CW”) on two
16 “narrow subjects”: Murphy’s “request that a co-defendant retrieve a firearm in 2013” and his
17 “subsequent threat of repercussions after the co-defendant failed to do so.” App’x at 295–96.
18 “We have held repeatedly that it is within the court’s discretion to admit evidence of prior
19 acts to inform the jury of the background of the conspiracy charged . . . or to explain the mutual
20 trust that existed between coconspirators.” United States v. Rosa, 11 F.3d 315, 334 (2d Cir. 1993).
21 And here, the testimony’s probative value was not “substantially outweighed by a danger of . . .
22 unfair prejudice.” Fed. R. Evid. 403. The district court permitted only questioning that carefully
23 avoided any implication about why Murphy wanted the gun—i.e., the 2013 shooting of which he
3 1 was acquitted. The district court also clearly instructed the jury not to consider evidence of the
2 2013 firearm “as proof that the defendant has a criminal personality or bad character,” App’x at
3 1413–14, and Murphy offers no reason to believe that the jury did not follow that instruction. See
4 United States v. Downing, 297 F.3d 52, 59 (2d Cir. 2002) (“Absent evidence to the contrary, we
5 must presume that juries understand and abide by a district court’s limiting instructions”). The
6 admission of testimony contextualizing the 2018 phone recording was an appropriate exercise of
7 the district court’s discretion.
8 b. Cooperating Witness’s Juvenile Criminal History
9 The government sought to preclude cross-examination of the CW about a sealed 2010
10 juvenile adjudication against him for rape and kidnapping (or aiding and abetting the same), an
11 offense for which the underlying records had been partially destroyed. The district court agreed
12 and precluded the line of questioning. Murphy contends that this violated his Sixth Amendment
13 right to “confront[] . . . witnesses against him.” U.S. Const. amend. VI.
14 Murphy argues that cross-examination on the juvenile adjudication would allow him to
15 impeach the CW’s character because the CW’s version of the juvenile offense differs from the
16 recitation of the facts in an unpublished opinion of the North Carolina Court of Appeals. 1 But the
17 discrepancy between the recited facts and the CW’s version supports the district court’s ruling: as
18 the district court noted, there is no way to know whether the CW is lying, so raising the issue of
19 the adjudication would require a “mini trial” based on decade-old, half-destroyed records. App’x
20 at 420. “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to
21 impose reasonable limits on . . . cross-examination based on concerns about, among other things,
1 It appears as if another juvenile, not the CW, was the defendant in the case appealed to the North Carolina Court of Appeals.
4 1 . . . confusion of the issues,” and we find the limits set by the district court to be reasonable.
2 Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). The district court properly exercised its
3 discretion to exclude questioning about the 2010 juvenile adjudication.
4 2. Sufficiency of the Evidence
5 Murphy next argues that the jury had insufficient evidence from which to conclude that he
6 conspired to distribute at least 280 grams of cocaine base. He originally raised this objection in a
7 motion for judgment of acquittal under Federal Rule of Criminal Procedure 29, so we review the
8 district court’s denial of acquittal de novo. See United States v. Persico, 645 F.3d 85, 104 (2d Cir.
9 2011). “The test for sufficiency is whether, as to a given count, a ‘rational trier of fact could have
10 found the defendant guilty beyond a reasonable doubt.’” Id. (quoting United States v. Jackson,
11 335 F.3d 170, 180 (2d Cir. 2003)). In making this determination, we must “consider[] the evidence
12 as a whole rather than piecemeal and view[] the evidence in the light most favorable to the
13 government.” Id. (citations omitted).
14 We agree with the district court that a reasonable jury could have found that Murphy
15 conspired to distribute at least 280 grams of cocaine base. “The drug quantity attributable to a
16 defendant knowingly participating in a drug distribution conspiracy includes (1) transactions in
17 which he participated directly [and] (2) transactions in which he did not personally participate, but
18 where he knew of the transactions or they were reasonably foreseeable to him . . . .” United States
19 v. Pauling, 924 F.3d 649, 657 (2d Cir. 2019). The CW testified that a single coconspirator,
20 Tyshawn Burgess, would sell about 3.5 grams of crack per day during the period of the conspiracy.
21 Thus, even if Murphy participated in the conspiracy for no more than the six months accounted
22 for in the CW’s testimony, the amounts distributed by Burgess alone would more than double the
23 280-gram threshold.
5 1 Taking the evidence in the light most favorable to the government, a reasonable jury could
2 have found that sales surpassing 280 grams were reasonably foreseeable to Murphy. The CW’s
3 testimony established that Murphy supplied several members of the conspiracy with crack, visited
4 the primary stash house on numerous occasions, and, at one point, kept at least 50 grams of a
5 substance the jury could infer was crack at the stash house. Murphy thus had multiple ways of
6 seeing the volume of drugs moved, and the evidence suggests that they moved at a rate that would
7 easily exceed 280 grams in six months. Cf. United States v. Richards, 302 F.3d 58, 70 (2d Cir.
8 2002) (finding sufficient support for a drug quantity determination based on the defendant’s
9 “overall knowledge” of the drug operation). We conclude that sufficient evidence supports the
10 jury’s verdict that Murphy conspired to violate 21 U.S.C § 841(b)(1)(A).
11 3. Substantive Reasonableness of the Sentence
12 Finally, Murphy argues that his 260-month sentence, which was higher than any other
13 coconspirator’s, was substantively unreasonable because it improperly punished him for going to
14 trial. “Our review of a sentence for substantive reasonableness is particularly deferential, and we
15 will set aside only those sentences that are so shockingly high, shockingly low, or otherwise
16 unsupportable as a matter of law that allowing them to stand would damage the administration of
17 justice.” United States v. Muzio, 966 F.3d 61, 64 (2d Cir. 2020) (internal alteration and quotation
18 marks omitted).
19 There is nothing shocking about Murphy’s sentence, which is well below the combined
20 Guidelines range of 322 to 387 months. See United States v. Messina, 806 F.3d 55, 66 (2d Cir.
21 2015) (“While we do not presume that a Guidelines sentence is necessarily substantively
22 reasonable, that conclusion is warranted in the overwhelming majority of cases and thus especially
23 when, as here, a defendant challenges a below-Guidelines sentence.” (internal quotation marks and
6 1 citation omitted)). Nor is it unsupportable as a matter of law. The district court expressly
2 acknowledged that Murphy had a right to go to trial and was not penalizing him for exercising that
3 right. Rather, the district court considered the codefendants’ sentences among the many sentencing
4 factors, while also acknowledging that, unlike Murphy, they had received “credit for acceptance
5 of responsibility.” App’x at 1976. We have repeatedly upheld this approach. See, e.g., United
6 States v. Menendez, 600 F.3d 263, 269 (2d Cir. 2010); United States v. Ebbers, 458 F.3d 110, 129
7 (2d Cir. 2006); United States v. Medina, 607 F. App’x 60, 62 (2d Cir. 2015); see also United States
8 v. Araujo, 539 F.2d 287, 292 (2d Cir. 1976) (“A show of lenience to those who exhibit contrition
9 by admitting guilt does not carry a corollary that the Judge indulges a policy of penalizing those
10 who elect to stand trial.”). We thus conclude that Murphy failed to demonstrate that the sentence
11 was substantively unreasonable.
12 We have considered Murphy’s remaining arguments and find them to be without merit.
13 For the foregoing reasons, we AFFIRM the judgment of the district court.
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk of Court 16