23-6470 United States v. Murphy

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 2nd day of July, two thousand twenty-four. 4 5 PRESENT: 6 GERARD E. LYNCH, 7 SUSAN L. CARNEY, 8 MICHAEL H. PARK, 9 Circuit Judges. 10 _______________________________________ 11 12 United States of America, 13 14 Appellee, 15 16 v. 23-6470 17 18 Ernest Murphy, 19 20 Defendant-Appellant. * 21 _______________________________________ 22 23 FOR APPELLEE: JUN XIANG (Matthew J.C. Hellman & 24 Karl Metzner, on the brief ), Assistant 25 United States Attorneys, for Damian 26 Williams, United States Attorney for 27 the Southern District of New York, 28 New York, NY. 29 30 FOR DEFENDANT-APPELLANT: MARTIN S. BELL, Simpson Thacher & 31 Bartlett LLP, New York, NY. 32 Appeal from an order the United States District Court for the Southern District of

33 New York (Sullivan, J.).

* The Clerk of Court is directed to amend the caption accordingly. 1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

2 DECREED that the district court’s order is AFFIRMED.

3 After we affirmed Defendant-Appellant Ernest Murphy’s conviction and sentence for his

4 role in a drug conspiracy, see No. 20-622,

(2d Cir. Aug. 27, 2021), he moved

5 for a new trial and to dismiss Count 2 of the superseding indictment against him, which charged

6 him with possessing a firearm in furtherance of a drug-trafficking crime and aiding and abetting

7 the same, in violation of

(c), 2. The motion argued that newly disclosed evidence

8 revealed that the government violated its obligations under Brady v. Maryland and knowingly or

9 recklessly misled the grand jury into indicting Murphy on Count 2. The district court denied the

10 motion, and Murphy now appeals. We assume the parties’ familiarity with the underlying facts,

11 the procedural history, and the issues on appeal.

12 I. None of the late-disclosed evidence was material, so a new trial is unwarranted.

13 Brady v. Maryland,

(1963), requires the government to disclose to defendants

14 evidence that is favorable, suppressed, and prejudicial. United States v. Hunter,

, 31

15 (2d Cir. 2022). Evidence is prejudicial if it is material to the defendant’s guilt or punishment.

16 Brady,

. Materiality for these purposes turns on whether “there is a reasonable

17 probability that, had the evidence been disclosed to the defense, the result of the proceeding would

18 have been different.” United States v. Stillwell,

(2d Cir. 2021). Undisclosed

19 impeachment evidence may also be material “where the witness in question supplied the only

20 evidence linking the defendant to the crime.” United States v. Avellino,

(2d Cir.

21 1998). But “where ample ammunition exists to attack a witness’s credibility, evidence that would

22 provide an additional basis for doing so is ordinarily deemed cumulative and hence immaterial.”

23 United States v. Orena,

(2d Cir. 1998). “Where suppressed evidence is

2 1 inculpatory as well as exculpatory, and ‘its exculpatory character harmonize[s] with the theory of

2 the defense case,’ a Brady violation has occurred.” United States v. Mahaffy,

, 130

3 (2d Cir. 2012) (quoting United States v. Triumph Cap. Grp.,

(2d Cir. 2008)).

4 “Materiality in this context presents us with a mixed question of law and fact.” United States v.

5 Madori,

(2d Cir. 2005). “While the trial judge’s factual conclusions as to the

6 effect of nondisclosure are entitled to great weight, we examine the record de novo to determine

7 whether the evidence in question is material as a matter of law.”

8 Murphy identifies three categories of evidence that were allegedly suppressed and material.

9 But he fails to “show that ‘the favorable evidence could reasonably be taken to put the whole case

10 in such a different light as to undermine confidence in the verdict.’” United States v. Jackson, 345

(2d Cir. 2003) (quoting Kyles v. Whitley,

(1995)).

12 First, Murphy points to a 2015 recording of a law-enforcement interview of coconspirator

13 Tyquan Robinson. On the recording, Robinson admitted that he participated in a 2015 altercation

14 with a rival drug dealer but denied using a gun in the altercation. At trial, coconspirator Maurice

15 Curtis testified that Robinson admitted to him that he was the shooter in the 2015 altercation.

16 Murphy argues that he could have undermined both Curtis and Robinson’s credibility—and the

17 government’s theory that the conspiracy regularly used firearms to advance its interests—had he

18 known of the 2015 Robinson recording before trial.

19 The 2015 recording was not material for Brady purposes. Although it may have been

20 admissible, see Fed. R. Evid. 806, the recording was not exculpatory. Robinson confessed his

21 involvement in the 2015 shooting during his prosecution for his role in the conspiracy. So, if

22 Murphy had offered the 2015 recording, the government could have rehabilitated both Curtis and

23 Robinson’s credibility with Robinson’s plea allocution in which he admitted that he was the

3 1 shooter in the 2015 shooting and that it was drug-related. See Fed. R. Evid. 806 (“[T]he declarant’s

2 credibility may be attacked, and then supported, by any evidence that would be admissible for

3 those purposes if the declarant had testified as a witness.” (emphasis added)). Even setting aside

4 what the government could have done, the value of the 2015 recording was low given the strength

5 of the government’s other evidence. United States v. Gil,

(2d Cir. 2002) (“Where

6 the evidence against the defendant is ample or overwhelming, the withheld Brady material is less

7 likely to be material than if the evidence of guilt is thin.”). For example, law enforcement arrested

8 Murphy at home, where they found crack, heroin, and two loaded magazines. The government

9 also introduced recordings of the conspirators, including Murphy, discussing using firearms in

10 connection with their drug dealing. And a law-enforcement witness testified that he recovered a

11 loaded gun in the in a stash house on Decatur Street in Brooklyn that Murphy and his

12 coconspirators used. Moreover, Murphy possessed ample evidence with which to impeach

13 Curtis’s credibility. See Jackson, 345 F.3d at 74 (“A new trial is generally not required when . . .

14 the suppressed impeachment evidence merely furnishes an additional basis on which to impeach a

15 witness whose credibility has already been shown to be questionable.”). We thus agree with the

16 district court that there is no “reasonable probability of a different result,” Kyles,

,

17 if Murphy had possessed the 2015 recording before his trial.

18 Second, Murphy points to a pair of recordings made during the 2017 interrogations of two

19 of his coconspirators, Tyshawn Burgess and Kerry Felix. Both men told investigators that they

20 were not involved in the 2017 shooting of a rival gang member. This conflicted with the testimony

21 of Curtis, who said that Felix told him that he and Burgess were responsible for the shooting. As

22 with the 2015 Robinson recording, Murphy argued that the 2017 recordings could have

23 undermined the credibility not only of Curtis, but also of Burgess and Felix—neither of whom

4 1 testified at trial—and could have allowed him to warn the jury that the shooting was unrelated to

2 the conspiracy.

3 Although the recordings of Burgess and Felix may have been admissible under Rule 806,

4 neither was exculpatory. As with the 2015 recording, both Burgess and Felix later admitted their

5 roles in the 2017 shooting. So the government would have rehabilitated, and indeed bolstered the

6 credibility of Curtis, Burgess, and Felix if Murphy had offered the 2017 recordings. Against the

7 backdrop of the government’s evidence, we agree with the district court that the 2017 recordings

8 could not have established a reasonable probability of a different result.

9 Finally, Murphy points to a 2018 recording of an interview Robinson gave after his arrest

10 on the indictment here. Robinson was arrested at a stash house on Decatur Street in Brooklyn.

11 Inside, police found drugs, cash, and a loaded pistol. Next to the gun and drugs, police found

12 Western Union receipts and insurance documents bearing Murphy’s name. No direct physical

13 evidence linked Murphy to the gun, but the government introduced the Decatur Stash House

14 evidence as circumstantial evidence against Murphy. On the 2018 recording, Robinson at first

15 stated that he and Murphy used the Decatur Stash House only for smoking; he denied knowing

16 whether the gun the police found there belonged to Murphy or whether Murphy engaged in drug

17 distribution at the time of the search. Later in the recording, Robinson changed his tune and said

18 that the Stash House was Murphy’s “crib” and that the contraband found there—including the gun,

19 crack cocaine, and heroin—was Murphy’s. Murphy argues that Robinson’s initial statements

20 would have exculpated him in the jury’s eyes.

21 As the district court correctly noted, the admissibility of the 2018 recording is dubious,

22 thus undermining its materiality for Brady purposes. See Gil,

. But even assuming

23 Murphy would have been able to present the 2018 recording, the jury likely would have heard both

5 1 the exculpatory and inculpatory portions. See Fed. R. Evid. 106. And, once again, the

2 government’s evidence was overwhelming. Although the first part of the 2018 Robinson recording

3 may have undermined Murphy’s connection to the gun found in the Decatur Stash House, the

4 government’s charge in Count 2 was broader than that one gun. The jury was properly instructed

5 that it could find Murphy guilty if it found that Murphy participated in the underlying drug

6 conspiracy and knew that a conspirator possessed a gun in furtherance of the conspiracy’s aims.

7 See Rosemond v. United States,

(2014). The 2018 recording would have failed to

8 undermine the numerous wiretapped conversations the government introduced in which Murphy

9 discusses using guns with coconspirators. At oral argument, Murphy contended that, had he

10 known of this recording, he could have called Robinson himself to testify that Murphy did not own

11 the gun found at the Decatur Stash House. But he did not make that argument in the district court

12 or in his brief to this Court. In any event, Robinson had a Fifth Amendment privilege to refuse to

13 testify. Had Robinson waived that privilege, he could have been impeached by his later retraction

14 of that position in the 2018 interview, and his guilty plea to a 2015 shooting. Robinson’s plea

15 agreement with the government did not immunize him from perjury charges, so if Robinson

16 testified favorably to Murphy, he would have opened himself up to a separate prosecution.

17 Moreover, two members of the conspiracy were recorded discussing their understanding that

18 Murphy had ordered that Robinson be killed because he believed that Robinson was cooperating

19 against him. So the odds that Robinson would testify at all, let alone favorably to Murphy, were

20 slim. Like the other recordings, the 2018 Robinson recording does not raise a reasonable

21 probability that the outcome of Murphy’s trial would have been different.

6 1 In short, none of the coconspirator recordings the government disclosed to Murphy after

2 trial—alone or together—raised “a reasonable probability of a different result.” Kyles,

at 434. We thus affirm the district court’s decision to deny Murphy’s motion for a new trial.

4 To the extent Murphy sought dismissal of the § 924(c) charge against him on Brady

5 grounds, the district court properly denied that relief too. It is well established that “the proper

6 remedy for a Brady violation is vacatur of the judgment of convictions,” not a dismissal of the

7 indictment. Poventud v. City of New York,

(2d Cir. 2014) (en banc).

8 II. The petit jury’s guilty verdict renders harmless any missteps before the grand jury.

9 Murphy argues that the government so misled the grand jury into indicting him on Count 2

10 that dismissal of that count is warranted. The alleged deceit came in the context of testimony

11 related to a 2013 shooting. The government—through a Special Agent—told the grand jury that

12 Murphy had asked an associate to retrieve a gun connected to that shooting and that Murphy’s

13 DNA was found on the gun. But the government did not tell the grand jury that Murphy had been

14 acquitted of charges related to that shooting and that Maurice Curtis—the government’s

15 cooperating conspirator—had proffered that Murphy wasn’t a member of the conspiracy at the

16 time of the shooting and that the shooting wasn’t drug-related. The district court ultimately

17 excluded from trial almost all evidence related to the 2013 shooting. Still, Murphy argues that in

18 its presentation of the evidence related to the 2013 shooting, the government recklessly misled the

19 grand jury warranting dismissal of the indictment is warranted...

20 Dismissal of an indictment because of government misconduct before the grand jury is

21 appropriate only if a knowing or recklessly misleading statement as to an essential fact

22 “substantially influenced the grand jury’s decision to indict, or if there is grave doubt that the

23 decision to indict was free from the substantial influence of such violations.” Bank of Nova Scotia

7 1 v. United States,

(1988); United States v. Lombardozzi,

(2d Cir.

2 2007). “[T]he mere fact that evidence presented to the grand jury was unreliable, misleading, or

3 inaccurate, is not sufficient to require dismissal of an indictment.” Lombardozzi,

.

4 Dismissal of the indictment is especially unwarranted when “[t]he particular claims of impropriety

5 before the grand jury . . . concern the sufficiency of the evidence, a failure to develop exculpatory

6 evidence by the prosecutor, the presentation of prejudicial evidence[, or] error in explaining the

7 law”—improprieties that could be “cured in the trial before the petit jury.” Lopez v. Riley, 865

(2d Cir. 1989). †

9 The government has no “legal obligation to present exculpatory evidence” to the grand jury

10 because such an obligation “would be incompatible with [the grand jury] system.” United States

11 v. Williams,

(1992). And although the district court excluded most evidence

12 related to the 2013 shooting, the jury still found Murphy guilty, proving that there was probable

13 cause to charge him with violating § 924(c). United States v. Mechanik,

(1986);

14

(“[T]he petit jury’s verdict of guilty beyond a reasonable doubt demonstrates a fortiori

15 that there was probable cause to charge the defendants with the offenses for which they were

16 convicted.”). So Murphy’s conviction “must stand despite the [alleged] violation” before the grand

17 jury.

18 * * *

† While the government may not have knowingly misled the grand jury, we are troubled by its presentation of evidence related to the 2013 shooting—evidence the government knew could not support a § 924(c) charge. Nobody disputes, for example, that the 2013 shooting predated Murphy’s participation in the conspiracy and was unrelated to drug trafficking. But the government’s presentation of the 2013 shooting created confusion, leading a grand juror to ask twice whether the 2013 shooting was “drug trafficking . . . related.” In response, the government never clarified that the 2013 shooting was not in furtherance of the conspiracy, even though the available evidence showed as much. Instead, as the district court recognized, the government seemed to suggest that 2013 shooting could support a § 924(c) charge against Murphy and was related to drug trafficking. We note that the lawyer arguing the case for the government in this Court was not the lawyer who conducted the grand jury proceedings.

8 1 We have considered all of Murphy’s remaining arguments and find them to lack merit.

2 Accordingly, we AFFIRM the district court’s order denying Murphy’s motion for a new trial and

3 to dismiss the indictment.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk of Court 6

9