United States v. Murphy ( 2021 )


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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
    7