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By Matthew Russell Lee, Periscope, Photos

SDNY COURTHOUSE, May 5 – Thirty two days after James Felton was found guilty after a jury trial including video of him shooting Marvin Harris to death on East 175th Street in the Bronx, his son James "Chunky" Diaz in October 2019 asked the government to stop withholding evidence.

 On April 29, 2021, Felton's appeal was heard by a Second Circuit Court of Appeals three-judge panel. The less than ten minutes argument focused on whether, in voir dire examination of juror, they should have explicitly been asked about unconscious racial bias.

  Assistant US Attorney Frank Balsamello argued that is not required. This while defendant Michael Avenatti is arguing that the media should be barred from all voir dire sidebars in his case, and Inner City Press is opposing it, here.

Now on May 5 in a summary order, the Second Circuit has upheld the voir dire in US v. Felton: "Felton’s sole contention on appeal is that the district court violated his rights under the U.S. Constitution when, during voir dire, it chose not to ask prospective jurors about implicit, or unconscious, racial bias... We disagree. It is well settled that “[v]oir dire is necessarily a matter in which the trial court has extremely broad discretion.” United States v. Lawes, 292 F.3d 123, 128 (2d Cir. 2002)... As defined by Felton’s trial counsel in their requested voir dire questions for the district court, “[u]nconscious biases are stereotypes, attitudes or preferences that people may consciously reject but may be expressed without conscious awareness, control or intention. Like conscious bias, unconscious bias, too, can affect how we evaluate information and make decisions.” App’x at 29... Here, Felton does not argue that a question on racial prejudice was constitutionally mandated under the circumstances of this case based upon the holdings of Rosales-Lopez and Ristaino....  [T]owards the end of voir dire, the district court again asked a question, in a broad and open-ended manner, to the prospective jurors about potential prejudice: 6 Based on everything that we’ve discussed up to this point in time, do any of you have the slightest doubt in your mind for any reason whatsoever that you’ll be able to serve conscientiously, fairly and impartially in this case and to render a true verdict without fear, favor, sympathy or prejudice and according to the law, as I’ll instruct you?” Id. at 112. Importantly, in United States v. Treacy we recognized that “a district court may find that warning a jury against an improper bias may be more effective in some cases than inquiring about that bias.” 639 F.3d 32, 47 (2d Cir. 2011).... Given the circumstances of this case, the district court did not err under any  7 standard in determining that the questions and warnings it posed during voir dire were sufficient to explore the issue of racial bias with prospective jurors." Inner City Press will stay on the case.

  Back on August 14, 2020 SDNY Judge Pauley appointed a CJA lawyer for co-defendant Bradford Cannon to seek COVID-19 releated release: "WILLIAM H. PAULEY III, United States Senior District Judge:  Anthony Cecutti, Esq. is appointed represent the Defendant to pursue any applications for release relating to the COVID-19 pandemic. Dated: August 14, 2020  New York, New York."

  On December 28, Judge Pauley held a conference on Cannon's request for compassionate release. Inner City Press covered it, live tweeting some here:

Assistant US Attorney Frank Balsamello chides defense lawyer for not citing any legal authority or specific medical condition. "While no one can prevent every inmate from getting COVID, they [BOP] have done an outstanding job."

Defense lawyer Cecutti: "The circumstances are much different now than when Your Honor sentenced him. He's tired of the street life. He's 50 years old and has a son who is struggling."

Judge Pauley: The defendant is 48 months into his more than 100 month sentence. The conspiracy included drugs, guns and violence. This Court has reviewed the parties' submission. Mr. Cannon relies on heart murmur, lower back pain... None of these are in CDC's list

Judge Pauley: This Court continues to believe that this defendant is a danger to the community. Releasing him would undermine general deterrence. In short, the 3553(a) factors have not significantly changed. Accordingly, application for release denied.

 Inner City Press will continue to cover this case.

 In July 2020 amid COVID-19  Tyrone Turner who has been in prison in Pennsylvania applied for compassionate release.

  On July 31 U.S. District Court for the Southern District of New York Judge William H. Pauley III held a proceeding. Inner City Press covered it.    Judge Pauley paid close attention in the Felton jury trial, which Inner City Press also covered. He admonished Turner for not turning over a new leaf in prison, rather picking up 40 pounds. He denied release.

 In May 2020 amid the Coronavirus pandemic, James Diaz (yes, a/k/a Chunky) is asking to be released on furlough: "United States v. James Diaz 17 Cr. 00021 (WHP) Dear Judge Pauley: This letter is submitted to request that Your Honor recommend to the BOP that James Diaz receive a furlough from his sentence due to the dangers posed by COVID-19. Mr. Diaz was sentenced to a total of 216 months imprisonment on October 8, 2019 for narcotics conspiracy in violation of 21 U.S.C. § 846, 21 U.S.C. § 841 (b)(1)(C) and using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Mr. Diaz remains incarcerated at the Metropolitan Detention Center (“MDC”) and has been designated by the MDC as an inmate who is vulnerable to severe consequences from COVID-19 due to his asthma. See also James Diaz sentencing submission filed 11/23/2018, ECF Doc. No. 335 at 3, PSR at 19 ¶ 91. According to the CDC, asthma is a risk factor for severe COVID-19 complications.

Accordingly, a recommendation to the BOP that Mr. Diaz be granted a furlough is respectfully requested. Conditions of Confinement at the MDC Create the Ideal Environment for the Transmission of COVID-19 As predicted by public health experts, the number of COVID-19 positive inmates and staff within the BOP system has been increasing at a terrifying rate. On March 30, 2020 there were 52 confirmed COVID-19 cases among inmates and staff.2 Currently, COVID-19 is tearing through the BOP prison system and as of May 20, 2020 has already killed 57 BOP inmates has resulted in a total of 4,407 inmates and 573 staff having tested positive. "

On October 8, U.S. District Court for the Southern District Judge William H. Pauley III sentenced Chunky to 216 months: "JUDGMENT IN A CRIMINAL CASE as to James Diaz (2). The defendant pleaded guilty to Count(s) 1, 4. Open/underlying counts are Dismissed. Imprisonment: 156 months incarceration on Count 1, 60 months on Count 4 to be served consecutively for a total of 216 months; Supervised Release: 5 years post-release supervision on count 4, 3 years post-release supervision on count 1, to be served concurrently for a total of five years supervision. The court makes the following recommendations to the Bureau of Prisons: The Court recommends the defendant be designated to a facility closest to the New York Metropolitan area and that the defendant participate in the Bureau of Prisons drug treatment program. Assessment: $200.00 due immediately. (Signed by Judge William H. Pauley, III on 10/8/19)."

"The defense is unaware of mitigating information contained in 3500 materials, including information that may not have been testified to at the Felton trial and never received the video of Romero brandishing a gun. Moreover, the government does not comply with its Brady obligations through withholding material and exculpatory information because it believes the defense may possess it. “Brady imposes a constitutional duty on the government to disclose evidence favorable to the accused where such evidence is material either to guilt or to punishment.” See United States v. Djibo, 730 F App'x 52, 56 (2d Cir. 2018) citing Brady v. Maryland, 373 U.S. 83, 87 (1963). This inquiry does not permit the government to withhold Brady evidence because, according to the government, the defense may be aware of it. This bears no relevance to whether the evidence is favorable and material, and consequently whether it must be disclosed. Moreover, the government’s reliance on Gaggi is misplaced because in Gaggi the government had disclosed the entirety of the 3500 material to defendants who were then in an equal position to draw inferences from the facts therein. United States v. Gaggi, 811 F2d 47, 59 (2d Cir. 1987). Requested Materials The defense requests any and all information in the government’s possession that is inconsistent with its theory and/or that harmonizes with the defense theory. See United States v Mahaffy, 693 F3d 113, 130 (2d Cir. 2012) citing United States v. Triumph Capital Grp., 544 F.3d 149, 164 (2d Cir. 2008). This includes but is not limited to all information relating to Romero’s threats and mistreatment of Diaz on or before December 11, 2016, government witness statements relating to what occurred in Diaz’s apartment on December 11 and reasons for individuals leaving/walking in particular directions, and what occurred on the street that night, including but not limited to Romero’s threatening statements and actions, and any statements or actions by Diaz wherein he tells others to “drop the gun” or not to shoot.  This request is for disclosure of pertinent grand jury testimony, 3500 material and any unwritten Brady information from interviews with witnesses to the shooting, including interviews with Ezekiel Burley, Andre Felton, Gabriel Gonzalez, and Edwin Romero, where the events of December 11, 2016 are discussed, and interviews of any other witnesses with knowledge of Romero’s threats against Diaz. This request also includes a demand for video depicting Romero displaying his firearm on December 11, 2016, which was not provided to the defense. "

   On July 10 Willie Reeves who was portrayed watching the murder as part of the 240 E. 175 St drug conspiracy came up for sentencing.

  Defense attorney Aaron M. Goldsmith spoke with family and friends of Reeves out in hall while U.S. District Court for the Southern District Judge William H. Pauley III finished up with a defendant describes as clearing up matters in The Bronx whom Judge Pauley advised to look for a job in an economy he described as thriving.

  As Inner City Press jotted this line down Reeves family members filed in. Taking detailed notes no longer seemed appropriate. They listened as Assistant U.S. Attorney Frank Balsamello described Reeves as merely watching the murder of Harris who had come to visit him. A family member next to Inner City Press shook her head vehemently.

  When it was Reeves' turn to speak he was understandably shook up, facing up to 108 months in prison. He first called Judge Pauley Mister Goldsmith, then Mister Pauley Three.

Ultimately Goldsmith who had emphasized his work as a barber in the MCC and MDS read the statement, while alluding to but not requesting a Fatico hearing on whether it was proper to punish a defendant like Reeves who had pled guilty but declined to cooperate.

  Judge Pauley got the family's attention by acknowledging that Reeves' brother had been killed. He went on to say that Reeves' list of accomplishments was thin. He called the government's exhibit of synchronized video of the shootings, apparently never uploaded or distributed to the media by the U.S. Attorney's office despite a Press request, the most riveting he has seen in 21 years on the bench, and the most troubling, that no one helped.

Judge Pauley imposed a sentence on Reeves at the lower end of the guidelines: 87 months with five years of supervised release.

Reeves said he wants to be a community organizer. Inner City Press will continue covering this Felton, Reeves, et al case, and the related cases before SDNY Judge Loretta Preska, in which it appears that a sealed sentencing was held on July 9, at least with the duo of Assistant U.S. Attorneys. Watch this site.

 Inner City Press will continue to cover this case, even without exhibits. See @InnerCityPress and the new @SDNYLIVE.

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