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By Matthew Russell Lee

SDNY COURTHOUSE, Sept 13 – A sex trafficking case involving 11 defendants has given rise to over 5,000 recorded prison phone calls leading the defense lawyers to request either more time or more money or both.  

US District Court for the Southern District of New York Judge Paul A. Engelmayer told the lawyers and defendants in large courtroom 318, where he may or may not hold his upcoming Tekashi 6ix9ine trial, that they can get money but not time. He said there are "liberty issues" about keeping the defendants in detention for so long.

  Defense lawyer Lloyd Epstein recounted how in a recent trial before Judge Pauley - that would be the James Felton conviction to a life sentence - he was able to search e-mail to prepare his cross examination. But how to search 5,700 audio calls?

 With paralegals, apparently. Or as Judge Engelmayer countered, with law students or college students. He told the defense lawyers to put in CJA requests to him, citing what he had just said on the record. The costs could grow: CJA defense lawyer Susan J. Walsh said that her client Justin Rivera is on 2,000 of the 5,700 calls...

Back on August 7 when Corey Roper a/k/a "Sneaks" came for sentencing on child sex trafficking charges he faced a 10 year minimum sentence from SDNY Judge Naomi Reice Buchwald. After the testimony of a victim, and descriptions of others kicked in the head, made to kneel for hours on uncooked rice and beaten with phone wires, Roper got thirteen years.

  His lawyer asked that he be designated to the facility in Devens, Massachusetts. Judge Buchwald quickly said, "That's not happening." The psychological report, she said, "was singularly unpersuasive to me."

  Roper said his father was in jail for 23 years and now he would be following. He had family members in the gallery, where Inner City Press was the only media present despite the sentencing being promoted by the same U.S. Attorney's Office which earlier on August 7 participated in a sidebar to have SDNY Judge John G. Koeltl have Inner City Press ordered to leave the presentment of a "John Doe" defendant arrested only the night before. Johns, indeed.

  Back on June 5 on the other side of Pearl Street a young woman who was pimped out and forced to quit high school testified  in a disturbing prostitution prosecution case proceeding before SDNY Judge Paul G. Gardephe.

  At noon on June 10 Assistant US Attorney Michael Krouse told the again nearly empty courtroom how Claudius English offered for sale children of 13, 11 and eight years told through a Chuck-E-Cheese in Harlem, via the Holiday Motel in The Bronx with outdoor (non lobby) entrance. He referred to a Government Exhibit 302 which has been requested but not produced; he urged guilty verdicts on all 10 counts.

  And later on June 10, but only announced on June 11, the jury as requested returned guilty verdicts on all ten counts. While having sat through much of the trial that English did it, or much of it, seemed clear, the jury never heard about CCRB and court complaints against some of the police officers involved. One of the cases was settled for $25,000: Harold Fields v. City of New York, in 29 May 2019 letter, Docket #72.

 The docket is full of letter motions by the government suppressing this and that, a rare letter from English's counsel James E. Newman asking for DD5s, then notes of interviews with Bronx District Attorneys, never provided.

  Judge Gardephe has ruled that English's post trial motions are due August 12, 2019, and has set sentencing for October 10.

  A note about transparency and the SDNY: despite covering much of the trial, as the only media showing up and asking for exhibits, there was no way to receive notice when the jury came back. Notably, the trial was only promoted on the day of of the summations, and the verdict only announced the next day. Inner City Press will have more on this.

  On the morning of June 10 Assistant US Attorney Ni Qian, to a courtroom suddenly nearly full after a week of trial with only Inner City Press in the gallery, delivered her summation. She told the jurors to quickly check off guilty on counts 1-8, then focused on count 9, kidnapping, and count 10, the gun charges sans bullets or holder or gun.

  She played the audio of Tatyana's 911 call, and said of course Claudius English got rid of the gun when he knew the police were closing in. But she did not address the NYPD's destruction of the bullets and holster.

   Claudius English's lead counsel asked for a recess and after the jury left he asked Judge Gardephe if the government will be restricted in bring up violence to witness Sara if he does not bring it up. Judge Gardephe indicated he will no restrict the prosecution and said, Act accordingly.

  During the break more than half of those in the gallery left. It seemed they were from the US Attorney's Office, which sent a copy of the US v. Claudius English complaint on the morning of June 10, but no press release and still none of the exhibits. Perhaps after the jury comes back? Watch this site.

  Back on the afternoon of June 7 the two lawyers for defendant Claudius English rested their case, with a final volley of questions for a police officer from the Bronx' 46th Precinct about whether a bottle of Seagram's gin taken from English's apartment in 1995 Davidson Avenue had been open or closed.

  The deeper problem, it has emerged, is that the New York Police Department destroyed evidence they took from English's apartment: three bullets and a holster. The government will submitted a letter to Judge Gardephe by Saturday, June 8 at noon on how the issue should be addressed in the jury charge.

 And here now via Inner City Press on June 8 is from the letter: "During trial, an NYPD property clerk, Sgt. Lachapell, testified that, pursuant to NYPD policy, three bullets and a holster were destroyed. The defendant has requested that the Court provide the jury with a spoliation instruction. The requested instruction is not warranted, because the evidence was not destroyed in bad faith, and because the defendant was not prejudiced by the destruction. See generally United States v. Greenberg, 835 F.3d 295, 304 (2d Cir. 2016) (affirming the denial of a motion to dismiss on spoliation grounds, because “the record is devoid of evidence that the Government acted in bad faith in failing to preserve the data”); United States v. Gonzalez, 764 F.3d 159, 170 (2d Cir. 2014) (stating that the destruction of guns and ammunition seized from defendant during his arrest pursuant to police department policies did not violate the due process rights of defendant); United States v. Pirre, 927 F.2d 694, 697 (2d Cir. 1991) (even assuming unpreserved evidence “might have been potentially useful” to the defense, “absent bad faith there is no violation”); United States v. Laurent, 607 F.3d 895, 902 (1st Cir. 2010) (Boudin, J.) (an adverse inference “instruction usually makes sense only where the evidence permits a finding of bad faith destruction; ordinarily, negligent destruction would not support the logical inference that the evidence was favorable to the defendant”); United States v. Romo-Chavez, 681 F.3d 955, 961 (9th Cir. 2012) (to warrant a spoliation instruction, “a criminal defendant must establish (1) that the evidence was destroyed in bad faith, and (2) that he was prejudiced by its destruction”); United States v. Lanzon, 639 F.3d 1293 (11th Cir. 2011) (affirming district court denial of adverse inference instruction where defendant failed to establish bad faith or prejudice); Stepnes v. Ritschel, 663 F.3d 952, 965 (8th Cir. 2011) (“Severe spoliation sanctions, such as an adverse inference instruction, are only appropriate upon a showing of bad faith”); United States v. Tyerman, 701 F.3d 552, 561 (8th Cir. 2012) (in addition to “bad faith,” prejudice must also be shown to justify a spoliation instruction— “the firearm was more inculpatory than exculpatory,” so the defendant “was not prejudiced by its destruction”). Here, the defendant has not satisfied either prong. There is no evidence of bad faith—the testimony at trial was that the evidence was destroyed in accordance with NYPD policy. And the defendant has suffered no prejudice—the destroyed evidence was highly probative of his guilt on the charge that he possessed and brandished a firearm. Accordingly, the requested adverse inference instruction is not warranted. The defendant can, of course, argue that the jury should consider the destruction of evidence before crediting the testimony from law enforcement officers that they recovered three bullets and a holster from the defendant’s apartment. See United States v. Jennell, 749 F.2d 1302, 1308-09 (9th Cir. 1984) (affirming the district court’s denial of a defendant’s request for a spoliation instruction under similar circumstances, stating that the district court appropriately “told counsel for the defendants that the loss or destruction of the evidence could be argued to the jury')."  Will it work?

On Monday, June 10 come the summations and said jury charge. Judge Gardephe's courtroom Deputy told the juror that on Monday, "Lunch is on us," after discussing the admittedly overpriced in-house Sorriso's Court House Cafe ("Established 2019").

  Will the NYPD's grossly negligent destruction of evidence in 2018 from a 2013 arrest allow impunity for these charges of child sex trafficking?

Earlier in Judge Gardephe courtroom with an otherwise empty gallery, a witness whom Inner City Press will not name and whose information will be sealed in the transcript testified to being forced into oral sex by a pimp, whom she called Jay, who fired a gun from his roof and threatened her Irvington, New Jersey parents.

  On June 6 the trial continued, with a Special Agent Nelson testifying about IP addresses from which Backpage.com advertisements were taken out. The case is USA v. Claudius English a/k/a Jay Barnes a/k/a Brent English, 18-cr-492 (PGG).

 The conduct at issue - the shooting of a gun from the roof, the forced sex, the buying of advertisements and re-sale of Shitsu dog - took place in an apartment building on  Davidson Avenue in The Bronx. The payments were made through Comerica Bank.

  In the state case against him, Claudius English got part of the search warrants against him quashed, see NYS decision here. Perhaps it emboldened him to go to trial on the Federal charges rather that plea bargain. As the trial nears its end, the wisdom of that decision will soon be seen. Watch this site.

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