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After Ernest Murphy Got 260 Months He Files His Own Motion to Vacate From FCI Otisville

By Matthew Russell Lee, @SDNYLIVE

SDNY COURTHOUSE, March 7 -- A jury returned guilty verdicts on drugs and gun charges on August 20, 2019 against Ernest Murphy, one of 15 defendants in a Brooklyn-based narcotics conspiracy case brought by the U.S. Attorney for the Southern District of New York.

   It came after some electronic and laboratory evidence was suppressed by Circuit Judge Richard J. Sullivan, who rather than re-assigning has kept many of his criminal cases in the SDNY.

 Now in 2023 from FCI Otisville, Ernest Murphy has filed his own motion to vacate under 28 USC 2255 on ground including ineffective assistance of counsel in not raising venue, abuse of discretion in evidentiary rulings, drug type and quantity and sentencing issues. It has been docketed.

Back on March 28 initial cooperator Maurice Curtis came up for sentencing; Inner City Press covered it. Curtis had been supposed to get a 5K1 letter and a light(er) sentence. But he charged with falsely claiming to have had an asthma attack in the GEO cooperators' jail in Queens, and with being part of a COVID 19 benefit fraud scheme. Judge Sullivan called it tragic, but saying it may be a message to other cooperators, sentenced Curtis to 20 years.

On March 2, 2022, Judge Sullivan docketed this: "JUDGMENT IN A CRIMINAL CASE as to Tyrell Sumpter (6). The Defendant pleaded guilty to count 3 of the Superseding (S1) Indictment. All remaining counts are dismissed on the motion of the United States. IMPRISONMENT: 12 years with credit for time served since September 9, 2018 (the date on which Defendant completed his state term of incarceration). The Court recommends that Defendant be housed at the United States Penitentiary in Allenwood, PA so that his family in New York may more readily visit him. The defendant is remanded to the custody of the United States Marshal. SUPERVISED RELEASE: 5 years. ASSESSMENT: $100.00 due immediately. (Signed by Judge Richard J. Sullivan on 3/2/2022)."

 On November 29, 2021, Judge Sullivan pushed back a sentencing in the case: "ORDER as to Maurice Curtis. IT IS HEREBY ORDERED THAT Defendant's sentencing, which is currently scheduled for December 20, 2021, will instead take place on February 21, 2022 at 2:00 p.m. at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY 10007. Defendant shall file his sentencing submission by February 7, 2022. The government shall file its sentencing submission by February 14, 2022 (Sentencing set for 2/21/2022 at 02:00 PM before Judge Richard J. Sullivan.) (Signed by Judge Richard J. Sullivan on 11/29/21)."

  In June 2021, Ramal Curtis who pleaded guilty two days before trial was supposed to be sentenced. But in May he wrote to Judge Sullivan complaining about his CJA lawyer.

 Judge Sullivan set up a CourtCall session, and agreed to appoint Curtis another lawyer. The June sentencing was off, as the new CJA lawyer would have to get up to speed.

On August 25, this: "MEMO ENDORSEMENT as to Ramal Curtis (12) terminating [853] MOTION to Seal Document [852] Sentencing Submission. ENDORSEMENT: Because the Court is not persuaded that Defendant's prior positive test for COVID-19 is the kind of sensitive medical information that implicates a privacy interest sufficient to overcome the presumption of open records, see United States v. Amodeo, 71 F.3d 1044, 1050-51 (2d Cir. 1995), Defendant's requests to file Exhibit B under seal and to redact references to his being ill with COVID-19 in the sentencing submission are DENIED. Defendant shall file his unredacted sentencing submission on ECF forthwith. SO ORDERED."

Inner City Press will continue to follow the case.

 On May 5, 2021, Darren Miller came up for sentencing in the same case. There was some discussion of whether he should be called "wholesale;" Judge Sullivan said yes he should. Judge Sullivan spoke of general deterrence, but varied slightly downward to 63 months, to be followed by four years of supervised released including no pot or even "spitting on a subway platform."

Judge Sullivan said he hoped people would know about this sentencing.

 Back on March 18, Lloyd Gordan submitted a notably redacted sentencing submission, about "post-plea criminal conduct engaged in by Mr. Curtis which has altered the evidentiary landscape [REDACTION]."

  Now on June 11, the US has filed more for the sentencing of Tyshawn Burgess. They say Judge Sullivan should consider what Curtis said, at least at trial. And they want a sentence of the guidelines of 262 to 327 months, FOLLOWED BY the mandatory consecutive sentence of 60 months on count two. Watch this site.

  On April 6, 2021, Lloyd Gordon came up for sentencing, by video from the MDC. He said there he is allowed out of his cell only an hour an a week a week. His lawyer emphasized he didn't himself use violence, though he pleaded guilty to supplying the conspiracy with crack. Judge Sullivan said he should have known better, but obviously had another side. On a guideline of 100 to 125 months, Judge Sullivan varied down to 90 months, minus the time already served.

 Back on September 8 Judge Sullivan was to sentence co-defendant Devontae Newton, using the CourtCall platform. Inner City Press called in. But first there was a lot of echoing on the line. It was recommended that Judge Sullivan mute himself, and raise his hand to be given the floor. He gamely endeavored, but finally the screen froze up and he said the sentencing would be postponed, probably to next week. He apologized to Newton. Strangely, Judge Swain's simultaneous (re-) sentencing on CourtCall worked fine. Inner City Press later learned there is a difference in capabilities in the computers of District Judges and Circuit Judges.

 On September 25, the Newton sentencing resumed and was consummated. Newton spoke movingly, and Judge Sullivan agreed that he had been young at the time of the crime. Judge Sullivan recounted a termination of supervised release proceeding earlier in the week, how well that defendant had been doing. Inner City Press covered that as well, but has yet to report on it because at the end, Judge Sullivan said the transcript would be sealed because of discussion of cooperation and where the cooperator now works.

  In this case, Judge Sullivan said he hoped Newton would in the future similarly return for a termination of (five years) of supervised release. Judge Sullivan said in Fort Dix, he can take college classes even in Princeton, "which I couldn't get into," he said.

  He sentenced Newton to 72 months - above the 60 month mandatory minimum, but below the 87 month guideline. Judge Sullivan pointed out he could have faced 15 years if the US Attorney's Office had not dropped the gun charge. He wished Newton well.

  Earlier in September 2020, this was sent to Judge Sullivan: "Re: USA v. Burgess et al., (Tyshawn Burgess) 18 Cr. 373(RJS) Dear Judge Sullivan: I am appointed counsel for Tyshawn Burgess, and Sam Coe is appointed co-counsel, pursuant to the Criminal Justice Act (CJA). Currently, Mr. Burgess is scheduled for a Fatico hearing on October 15, 2020. As the Court is aware, this is a complex matter with voluminous discovery relevant to the upcoming hearing. My understanding is that Mr. Burgess is only permitted to view discovery for one hour at a time at the Westchester County Jail, which makes his participation in his own defense difficult as the hearing approaches. We are requesting that the Court direct the Westchester County Department of Correction to allow Mr. Burgess to review the discovery in his case for at least two-hour blocks of time, to the extent practicable, between now and the date of the hearing. Mr. Coe has contacted two of the assistant wardens of the jail regarding this issue, as directed by a jail supervisor, and has not yet received a response."

 On September 8, Judge Sullivan denied the request without prejudicing, urging that if it is renewed more detail be provided: "MEMO ENDORSED denying [715] LETTER MOTION Additional Time in the Library at the Jail as to Tyshawn Burgess (1) ENDORSEMENT: IT IS HEREBY ORDERED THAT Defendant's motion is denied without prejudice to renewal. Should Defendant seek to renew his motion, IT IS FURTHERED ORDERED THAT he provide the Court with specifics about when and to whom his requests were made at the Westchester County Jail, and what response, if any, he has received as of the date of his renewed motion. SO ORDERED. (Signed by Judge Richard J. Sullivan on 9/6/2020)." Watch this site.

  On March 3 Burgess came up for sentencing and Inner City Press which alone covered the trial went to cover it. But the sentencing was postponed for this Fatico hearing. Before he adjourned it, Judge Sullivan told Burgess in his orange WCDOC shirt that others in the case, he says given serious time: Bayer 108 months, Felix 160 months, Robinson 126 months, Murphy himself 260 months (see below), Wilson 180 months.

 But now there will be a Fatico hearing, and Inner City Press hopes to be there. Judge Sullivan is right that transparency is important, and it is appreciated. Here's the Minute Entry: "proceedings held before Judge Richard J. Sullivan: Status conference/Sentencing held on 3/3/2020. Defendant, in custody, present with attorneys Lorraine Gauli-Rufo and Samuel Coe. AUSA Karin Portlock present with Brittany Raffa (ATF) and James Miles (NYPD Det.) Court reporter present. The Court adjourned the sentencing and ordered the parties to appear for a Fatico hearing. The Court ordered the government to submit a letter no later than Wednesday, March 10, 2020, advising the Court of counsel's availability for such hearing, the government's expected witnesses and exhibits, and whether any of Defendant's co-defendants require the Court to resolve similar disputes. The Court will set a date for the Fatico hearing by separate order. " Watch this site.

 Back on February 13, 2020, Judge Sullivan sentenced Ernest Murphy. In the gallery of his mobile courtroom now 11B were six Murphy supporters, and independent Inner City Press. Judge Sullivan was rigorous, demanding that Assistant US Attorney Matthew Hellman justify his count of weight of heroin and of crack.

  In a two hour proceeding, Sullivan sentenced Ernest Murphy to 260 in prison: 200 months on Count 1 (lower than the government requested), and 60 more months to run consecutive on Count 2. Judge Sullivan urged Murphy to get R-DAP drug rehab and job training and warned his "iPad and laptop" may be searched -- all this in more than 20 years when he gets out. What will be the technology then? Inner City Press will stay on this.

  Murphy's two Criminal Justice Act lawyers, Patrick Joyce and Robert Moore, present again on February 13, had complained to Judge Sullivan on the eve of trial that they had only then been given 16 gigabytes of audio and video recordings and lab tests on crack cocaine.

  Rather than delay the trial, Judge Sullivan ordered much of it suppressed. During the five day trial the government still had a number of NYPD lab technicians testimony, and played wiretaps of cell phone calls and calls from Riker's Island, whose location in The Bronx was cited as a basis for venue in the SDNY.

  In the intercepted calls, there was discussion of cooking, packaging and selling crack cocaine. Several times reference was made to bringing firearms to protect turf. A government slang expert witness said that "Shaquille" jersey meant .32 caliber pistol.

  After the jury got the case, they asked to examine the drugs. Judge Sullivan declined to send the crack and ecstacy pills into the jury room. Instead the juror came out and passed them hand to hand, in evidence bags, in the jury box.

 On the second day of deliberations the jury through the Court Security Officer passed a note that they wanted all audio recordings and transcripts. Judge Sullivan sent them in a thumb drive and three binders, as well as a menu to order lunch.

  But barely an hour later, the jury returned with its guilty verdicts. The case is US v. Ernest Murphy, 18-cr-373 (Sullivan).



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