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SDNY COURTHOUSE, Nov 11 – Defendant Ernest Horge back on February 27 said in open court that it is unfair he is in the same case as a man now set to be charged with capital murder, Sidney Scales.

  Horge's court appointed lawyer Matthew D. Myers said he might soon make a motion for severance of the cased, but he has a trial on the other side of the country first.

  Months later on May 28 amid the COVID-19 pandemic, Horge and Myers and others appeared virtually before U.S. District Court for the Southern District of New York Judge Laura Taylor Swain. Inner City Press again covered it, below.

 Now on November 11, Veterans Day, the US Attorney's Office has announced a superseding indictment that formally charges Scales with murder, and keeps Horge linked to him: "In the Superseding Indictment, SCALES is charged with causing another person to shoot at rival drug dealers on June 9, 2017, in the vicinity of 1135 East Tremont Avenue in the Bronx, New York, causing the death of Joshua Lopez.  SCALES and HORGE are also charged in the Superseding Indictment with engaging in multiple specific drug sales between November 2018 and February 2019, in addition to the narcotics conspiracy charged in the initial indictment." The case has been reassigned to Judge Jed S. Rakoff, the docket says. We'll have more on this.

   Scales will not, in fact, face the death penalty. Horge said he needs the chance to communicate with him, to avoid misunderstandings. CJA lawyer Myers spokes vaguely about family member contacts and of his talks with the U.S. Attorney's Office about a pre-trial disposition. Horge spoke for himself, as before, and asked for release on medical grounds. It was not granted. The next telephone conference was set for July.

 On July 20 Inner City Press covered Judge Swain's proceeding in the case, on Scales. It emerged that Horge's son has written to the Judge, stating "My father was a good man, he always support the family, he provided food and clothes for me and my brother. I wanna to ask, How long do my father Ernest horge has to do time for press respond back, I'm really worry about him and I miss him so much."

   Judge Swain's chambers wrote back that the Judge "is not in a position to respond to your question."

 On September 10, in another proceeding in the case(s) that Inner City Press covered, Horge again spoke to Judge Swain, saying he is being used against "the big elephant," presumably meaning Scales.
 
  The Assistant US Attorney, on the other hand, said that the witnesses against Scales on the murder charge, and Horge for what the AUSA called his role, would be largely the same, so the US will oppose severing the trials.

  Then when Horge opposed excluding time under the Speedy Trial Act, the US opposed that as well. Horge said happy birthday to his son who had turned two years old, and who he hasn't seen since the boy was five months old. He thanked the government, with sarcasm.

 Now on October 26, Judge Swain has denied Horge's motions: "Defendant Ernest Horge (“Mr. Horge”) moves (1) to sever his trial from that of his co-defendant Sydney Scales, (2) for a bill of particulars, and (3) to dismiss the abovecaptioned Indictment. (Docket Entry No. 102, the “Motion.”) The Court has carefully considered the submissions of the parties, including the Government’s opposition brief dated October 9, 2020 (Docket Entry 109, “Opp.”),1 and, for the following reasons, denies Mr. Horge’s Motion in its entirety. BACKGROUND The Indictment in this case comprises four counts. (Docket Entry No. 2, the “Indictment.”) Count One charges Mr. Horge and Mr. Scales with violating 21 U.S.C. section 846 by participating in a narcotics conspiracy between 2016 and 2019, involving 280 grams and more of mixtures and substances containing a detectable amount of cocaine base, five kilograms and more of mixtures and substances containing a detectable amount of cocaine, and one kilogram and more of mixtures and substances containing a detectable amount of heroin, all in 1 Mr. Horge did not file a reply. Case 1:19-cr-00096-LTS Document 117 Filed 10/26/20 Page 1 of 9 HORGE - MOTS TO SEVER DISMISS BILL OF PARTICULARS.DOCX VERSION OCTOBER 26, 2020 2 violation of 21 U.S.C. section 841(b)(1)(A), as well as mixtures and substances containing a detectable amount of fentanyl, in violation of 21 U.S.C. section 841(b)(1)(C). Count Two charges Mr. Horge and Mr. Scales with knowingly using, carrying, and possessing firearms, and aiding and abetting the use, carrying, and possession of firearms, some of which were brandished and discharged, during and in relation to the narcotics distribution conspiracy charged in Count One, in violation of 18 U.S.C. sections 924(c)(1)(A)(i), (ii), (iii), and 2. Count Three charges Mr. Scales with a conspiracy to commit murder for hire, arising out Mr. Scales’s alleged agreement to compensate others for the location and killing of a rival drug dealer, in violation of 18 U.S.C. section 1958. Count Four charges Mr. Scales with using, carrying, and possessing firearms (and aiding and abetting the same) in connection with the conspiracy charged in Count Three.2  DISCUSSION In his Motion, Mr. Horge makes three requests. First, he seeks to sever his trial from that of Mr. Scales, arguing that he would suffer “spillover prejudice” from Mr. Scales’s murder-for-hire charges if he and Mr. Scales were tried together; that his defense is “antagonistic” to that of Mr. Scales; that the “size, complexity, and length” of a joint trial would “preclude jurors from properly assessing the evidence and distinguishing each defendant’s 2 The Government has on several occasions advised the Court, and Defendants, that it may bring additional charges against Mr. Scales, “stemming from the June 9, 2017 murder of Joshua Lopez, a/k/a ‘Mohall,’ in front of a barbershop at 1135 East Tremont Avenue in the Bronx (the ‘Lopez Murder’).” (Opp. at 2.) The Government does not intend to charge Mr. Horge in any additional counts stemming from the Lopez Murder, but proffers that Mr. Scales “called upon” Mr. Horge to “visit the scene of the Lopez Murder shortly after it occurred” (id. at 16), and that “[e]ven if the Lopez Murder were not charged in separate counts . . . the incident would still constitute one instance of a drugrelated discharge of a firearm, as alleged in Count Two of the existing Indictment"... For the foregoing reasons, Mr. Horge’s Motion to sever, dismiss, and for a bill of particulars is denied in its entirety. Docket Entry No. 102 is resolved. The next pretrial conference in this case is scheduled to be held on November 12, 2020."

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 Back in February in an in-person proceeding in the gallery where Inner City Press was the only media were family members of both defendants, including a small child running around with a pacifer.

Previous Horge and Myers described non-functional computers to review discovery in the MCC, requiring him to print out nine inches of documents from a hard drive the US Attorney's Office provided him.

   U.S. District Court for the Southern District of New York Judge Laura Taylor Swain, who has also received handwritten letters from Horge's family members and filed them in the docket after redacting children's names, patiently asked Horge about his medication. On February 27 she urged him to speak less.

   But Horge had more to say. He insisted that the gun was found in someone else's room, in someone else's apartment.

     He said the prosecutors, here represented by AUSA Frank Balsamello, were just "using 924(c) as a bargaining tool." He said everybody loves him, he has a great sense of humor. He rhymed Prosecutors lying and kids crying, and called the whole situation a "Star Spangled Banner blueprint for genocide."

  That said, the case will continue, with a conference on February 27 - the one Inner City Press attended. Now there's a delay for capital case review in DC. The case is US v. Horge, 19-cr-96 (Swain). 

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