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By Matthew Russell Lee, Patreon
Honduras - The Source - The Root - etc

SDNY COURTHOUSE, Dec 17 – On the second day of 2014 in The Bronx, New York Shaquille Malcolm was repeatedly shot and killed in a building in the Allerton section.

In arraignments that followed, Inner City Press reported that the death penalty was on the table, including as to a co-defendant who has since pled guilty to a superseding indictment, Gyancarlos Espinal. He was never given immunity to testify at the trial, and that may be a grounds for appeal, if one or both defendants are convicted.

On December 4 the two remaining co-defendants Arius Hopkins and Theryn Jones a/k/a Old Man Ty were on trial before U.S. District Court for the Southern District of New York Judge Lewis A. Kaplan.

On December 12 the government gave its summary, with many ASUAs in the courtroom. They left before Arius Hopkins' lawyer Glenn A. Garber delivered his folksy or colloquial closing, asking the jurors to think about the Instagram post, the rap song, and especially the crime scene.

  Garber did a higly creditable job; those too few who saw the trial had nothing but positive reviews. But it closed with a whimper and not a bang.

  On the morning of December 17, still with no jury verdict, Inner City Press went to check the courtroom. Outside, Garber worked his phone. He turned to point out to Inner City Press the problems with the way the government goded out answered on gang rules, then kindly said that he respected the work. A request to be informed of the verdict did not result in notice (and the US Attorney's office has yet to respond to Inner City Press' request that it make available its used exhibits in this case, nor in the OneCoin case). Instead this, from PACER:

"A jury verdict was returned finding both defendants Jones (03) and Hopkins (04) guilty on both of Counts (S4) One and (S4)Two. Sentencing was scheduled for 5/7/2020 at 11:00 AM. PSIs were ordered Both defendants remained remanded...Sentencing set for 5/7/2020 at 11:00 AM before Judge Lewis A. Kaplan." But we would expect motions and more before then. And still the US Attorney's Office never responded to Inner City Press' request that the exhibits be made available, a stonewall as on the US v. Scott / OneCoin trial. Watch this site.

  After by the elevator where Inner City Press on December 11 spoke with US Attorney Geoffrey Berman while or before being dissed by his staff, Inner City Press spoke with another courtroom attendee, who asked rhetorically, I hope you see how they're trying to railroad my baby.

  The jury returns on Monday to hear the charge, then deliberate. Inner City Press will be there.

  On December 11 the evidence culminated with Arius Hopkins taking the witness stand to testify on his own behalf.

He was cross examined by Assistant US Attorney Danielle Sassoon, with other AUSAs and US Attorney Geoffrey Berman himself in the gallery along with, as the only media, Inner City Press. (The US Attorney's Office has thrice declined Inner City Press' request they make available their admitted exhibits for this trial and for the OneCoin trial, still withheld).

  AUSA Sassoon hammered away at Arius a/k/a Scrappy: doesn't his gang have rules?

 He asked, like what kind of rules?

  Does it have rules, yes or no?

 Not necessarily.

  Judge Kaplan admonished Hopkins, but it's his life, and if he is found guilty, it will be his sentence.

  After the cross examination, in the hall Inner City Press remarked to US Attorney Berman on Sassoon's appellate argument earlier in the day, which it also covered, defending one of Judge Kaplan's sentencings, in a brothel finance case.

 "Ten a.m.," he said, clearly aware.

 Inner City Press waited for the next elevator. On December 12 the government may or may not put on a final rebuttal witness. Then the closings, no jury on Friday - and then, one imagines, a verdict. Inner City Press will request notice, and report on it. Watch this site.

  On December 10 the lawyer for Arius Hopkins a/k/a Scrappy wrote to Judge Kaplan why his Instagram expert should be allowed, despite or because of Facebook refusing to even answer about it customer: "I write to provide an offer of proof regarding testimony about Instagram. The proof is that Arius Hopkins held himself out and/or was known as a MacBalla before the murder of Shaquille Malcolm. This proof refutes the government’s contention (advanced through witness testimony) that Ty Jones made Hopkins a MacBalla as a reward for the killing of Malcolm. It is therefore relevant under FRE 401. The testimony is also admissible under FREs 701 and 702. If Justin Cuomo the witness discussed in court today testifies, he will say that he is a senior analyst at John Cutter Investigations Inc. (“Cutter),” a licensed private investigations company bonded in New York and elsewhere. Part of the investigatory work of Cutter is searching and analyzing communications and posts on social media and the use and operation of different platforms, including Instagram. Mr. Cuomo was taken seminars on social media, including Instagram, and has conducted research about Instagram’s operation and functionality. He is also an Instagram user and has been so for the past seven years. He thus has practical knowledge about how it works. Notably, Hopkins opened his Instagram account on 7/28/2013, less than seven years ago. See AH DX P (subscriber information about Hopkins’ account provided by the government in discovery). Mr. Cuomo would further state that: • “scrappyballa” is an active Instagram account • Anyone can log in and search the account • A post with a photograph was made of Hopkins on 9/10/13 and the username “scrappyballa” appears (AH DX Q) o Under the photo it says: “scrappyballa OUT HERE LATE NIGHT ! MACCIN WIT THA GOONS” • Associated with the 9/10/13 post is a comment that reads: rebeccaxmariex3 @scrappyballa uncle arius don’t make me f*ck you up!!!!”

Under the comment is a reference “325w”, which means the comment was made 325 weeks ago1 Mr. Cuomo would also testify that the reference or tag @scrappyballa contained in the comment is a static thing and that it was made 326 weeks ago. It does not change, and even if the username was changed or created after the post and comment (which the defense does not believe to be the case) any change is unrelated to the @scrappyballa reference or tag in the comment, and cannot cause the reference to or tag to change. Consequently, as of 326 weeks ago around the time of the posting on 9/10/13 Hopkins was going by or being referred to as scrappyballs on Instagram. In addition, the Instagram user information indicating that Hopkins opened the account on 7/28/13 (Ex. A), also suggests that Hopkins opened the account with username scrappyballa. .However, we have not been able to confirm this fact through Facebook/Instagram. Two subpoenas were served on them – returnable 12/5/19 and 12/10/19 – and Facebook/Instagram failed to comply both times in violation of the subpoenas. It was the expectation that in addition to explaining the user information document, a representative of Facebook/Instagram could also have explained the @scrappyballa reference or tag in the rebeccaxmariex3 comment." Inner City Press will continue to cover this.

 Earlier on December 10, after cooperator Costello described his non prosecution agreement for crimes in the Courtlandt Avenue area he said that defendant Old Man Ty (Jones) told him that Scrappy (Hopkins) was "the young 'un that handled that for me." The "that" being the killing of Shaquille Malcolm.

 There were several rounds of lawyers' arguments, with Judge Kaplan denied Article 29 motions and recounting stories from previous trials. He recalled a long gun being pointed at the jury and, when he said don't point there, at him. He quoted Judge Rifkin, When you're ahead, get out of the courtroom.
 
  But he was delayed by several "just one more thing" interventions by lawyers. There were jury notes asking why El Dorado and Fat Boy were not subpoened and made to testify; there were medical procedures for jurors and alternates. On December 11 the trial doesn't start until 10:45 am, so that AUSA Sassoon can argue before the Second Circuit, an appeal from Judge Kaplan no less. Watch this site.

 December 9 saw the testimony of the cooperator whom shooter Alexander Melendez recruited to make a call to police to sent them elsewhere in the neighborhood looking for a gun. He didn't make the call. But on March 9 he was played his jail house call with Arius Hopkins and said because it was recorded he spoke in "subliminals."

  Later came a medical examiner, though not the one who conducted the autopsy. The prosecution insisted that the defense say on the record they had waived their confrontation rights, something they declined to do beyond noting they had not objected to the witness. She said the wounds on Shaquille Malcolm's forehead were most probably gazing wounds.

  A women who found Shaquille Malcolm in his building's lobby said when she called 9-1-1 they told her to kick the body to see if it moved. She did not do so.

   Testifying against the two defendants has been cooperator Alexander Melendez. On December 4 he described using a .22 to shoot and kill Shaquille Malcolm, with orders and firepower given by the two men with six lawyers sitting at the defense table.

 On December 5 Arius Hopkins' lawyer Glenn A. Garber prepared stacks of transcripts and other documents in order to cross examine Melendez. But to question after question, Melendez said "I don't remember." He didn't remember what he had said in proffer sessions.

  This resulted in a Q&A straight out of Becket:

Garber: "You remember you said you didn't remember?"

Melendez: "I don't remember that."

  One thing Melendez did remember was what prisons he has been in. After state prison in Elmira, where those who allegedly ordered him to commit murder put money in his commissary for food and clothing and he apparently had a television set stolen, he's been in the MCC, MDC and GEO, which he said is in Queens.

  Melendez is represented by CJA lawyer Matthew Kluger, who has been in the gallery throughout his testimony, sometimes behind Inner City Press, sometimes on the other side. Judge Kaplan asked those in the back of the courtroom not to remonstrate; regardless, Melendez kept glancing back at them. In the hall, some said, "That [N-word] be lying." We'll have more on this.

 And on this: early on December 5 Inner City Press asked the US Attorney's Office press department to make available its exhibits in this case, and in the completed OneCoin / US v. Mark Scott trial, as they have in other Mafia, rapper and other cases. At day's end, no exhibits, not even a response. We'll have much more on this.

   An issue is the use of a rap or hip-hop song as evidence. Arius Hopkins' lawyer Glenn A. Garber had asked that prospective jurors be asked if they were familiar with "the genre of music called gansta rap."  

On December 4, Assistant US Attorney Danielle R. Sassoon argued that questions about the song - a copy of which does not appear to have been uploaded by the US Attorney's Office unlike with GUMMO and Billy in the #6ix9ine trial also known as US v. Jones - should be limited.

  Such songs and lyrics are also being used by the US Attorney's Office in another SDNY case Inner City Press has covered, US v. Darrell Lawrence, et al., 19-cr-761 (Oetken). It is an emerging and accelerating First (and Fifth) Amendment issue, leading Inner City Press to raise folk-type song SDNY questions.

   Judge Kaplan reserved judgment on what he will allow on cross-examination. This case is US v. Jones, et al., 17-cr-791 (Kaplan).   

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