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As Brother Of Another Cary Grant Sues Over Candy Man Abuse SDNY Judge Gardephe Urges Settlement

By Matthew Russell Lee

SDNY COURTHOUSE, July 26 – Ronald Grant wrote an autobiographical play entitled "Cary Grant's Young Brother" and is now suing Angela Robinson Witherspoon for violating his copyright with a short film called "Curtsy, Mister."

  An attempt to file a motion to dismiss was slapped around but not itself fully dismissed on July 26 by U.S. District Court for the Southern District of New York Judge Paul G. Gardephe.

 Judge Gardephe chided the defense's lawyer Tedd S. Levine for failing to include case law in his pre-motion letter. He urged the sides to talk settlement, and said he would not stay discovery, or stretch it out over five months but rather 90 days.

 The author's brother was not the actor but an usher in Radio City, where it seems the play says the author was joined in the bathroom by the candy man.

  The complaint says the Defendants "sought to harm Mr. Grant via the dissemination of intimate details about his life." Judge Gardephe said this was a difficult charge under New York law, and especially since the author had himself revealed the intimate details in the play. He said motion practice would waste money and admonished both attorneys, the only ones in his courtroom besides his staff and Inner City Press, to be sure to tell their clients this. Will they? Watch this site.

  Previously in Judge Gardephe's courtroom (in June), a young woman who was pimped out and forced to quit high school testified on June 5 in a disturbing prostitution prosecution case.

 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 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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