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United States v. Derry

United States District Court, D. New Jersey

September 15, 2017








          NOEL L. HILLMAN, U.S.D.J.

         Pursuant to Federal Rule of Criminal Procedure 37, Defendant Malik Derry seeks an indicative ruling from this Court that it would grant a motion to vacate his conviction and sentence under 18 U.S.C. § 924(c) if the Court of Appeals were to remand this case for that purpose. The Defendant contends that the government violated its obligations of disclosure under the rule set forth in Brady v. Maryland, 373 U.S. 83, 87 (1963).[1]The United States requests that we deny the motion.[2] For the reasons set forth below, we will deny the motion to vacate the conviction and sentence pursuant to Fed. R. Crim. P. 37(a)(2).



         This Rule 37 motion follows the trial and conviction of brothers Mykal Derry and Malik Derry, indicted by the Government on a multitude of charges related to a heroin trafficking conspiracy. One of the charges, Count Ten, alleged that they “did knowingly and intentionally use, carry, possess, brandish and discharge a firearm in furtherance of the drug trafficking crime.” (Superseding Indictment, Docket No. 194.)

         The evidence introduced at trial to convict Malik Derry of Count Ten related primarily, but not exclusively, to one event, the shooting and murder of Tyquinn “T.Y.” James. The Government's theory was that Malik Derry, as an enforcer for the Derry Drug Trafficking Organization (“DDTO”), shot and killed James, a rival drug dealer, in cold blood, because James dared to appear near territory claimed by the DDTO.

         The jury was shown a video of the murder captured by a surveillance camera focused on the area in front of the storefronts where the shooting occurred. James, on foot and lingering in front of one of the stores, is approached from behind by a tall, thin, hooded figure on a bicycle who shoots him in the back of the head, execution-style, with a handgun. James slumps over lifeless. The cyclist rides on, appearing to take the time to shoot at least one more round at James on the ground.

         In addition to the video, the Government's case was based upon evidence including wiretaps of telephone calls and text messages between the Derry brothers and others before and after the shooting, the recovery of a bicycle and the murder weapon from Mykal Derry's part-time residence, in addition to other evidence that the DDTO used violence, including training with and using guns, to protect its turf and its members.

         In response to this evidence and the government's theory that Malik Derry shot James in furtherance of the operations of the DDTO, Mykal Derry took the witness stand in his own defense (and in de facto defense of his brother) and on cross-examination offered his confession that he - not his younger half-brother Malik - shot James. Mykal told the jury that he shot and killed James in retaliation for shots fired at him on an earlier date, arising from a dispute over a woman about whose name he was vague.[3] (Trial Tr. 5559, August 11, 2015, Docket No. 816) (Cross-examination of Defendant Mykal Derry: “I think her name was Tasha. I don't -- it was back in 2011. I ----.”)

         As discussed more fully below, the jury plainly rejected Mykal's confession and, although they were not called upon to answer precisely the question of whether Malik Derry shot James, they returned a verdict that demonstrated they accepted both the Government's theory that Malik, not Mykal, pulled the trigger and the overwhelming evidence that Malik shot James to protect the Mykal Derry-led DDTO and its lucrative heroin sales in the Atlantic City housing project they controlled.

         The Defendants argue they should be granted an acquittal or other lesser relief on the Count Ten charge because they say the Government failed to disclose Brady information they would have used to impeach a Government cooperator, Kareem Young, whose testimony they argue was the Government's only evidence linking the shooting to the drug trafficking crime.



         A. Trial and Sentencing

         Malik Derry and Mykal Derry were two of 34 defendants charged on March 18, 2013 by criminal complaint with conspiracy to distribute heroin. (Complaint, Docket No. 1.) On March 26, 2013, Mykal and Malik Derry were arrested. (Arrest Warrant, Docket No. 6.) On February 5, 2014, 15 alleged co-conspirators were indicted together (Indictment, Docket No. 45) and subsequently arraigned.[4] The matter was designated as a complex case[5] and after a series of guilty pleas, two trials of the remaining defendants were held. Five defendants were tried together before the late Senior United States District Judge Joseph E. Irenas. Beginning on July 7, 2015, the last of the defendants, Mykal Derry and Malik Derry, proceeded to trial before the undersigned. On August 18, 2015, the jury convicted Malik Derry on all counts of the Superseding Indictment (Docket No. 194), except one, and Mykal Derry on all counts, except one. (Verdict Sheet, Docket No. 827.)

         More specifically, the jury convicted Mykal and Malik Derry both of: (1) conspiring to distribute one or more kilograms of heroin; (2) using, carrying, or possessing a firearm during and in furtherance of that conspiracy; and (3) discharging a firearm in furtherance of that conspiracy. In addition, the jury convicted Mykal Derry of 41 counts of using a telephone in furtherance of a drug-trafficking crime and in eight of those counts convicted Malik Derry of the same charge. (Id.) The jury also convicted Mykal Derry separately of distributing smaller amounts of heroin and operating a stash house. (Id.)

         In an example of the jury's discerning nature and attention to detail, it acquitted Mykal Derry of distributing, or possessing with intent to distribute, a distributable amount of heroin on October 18, 2012 in Count 5 but convicted him of aiding and abetting the same distribution. The jury's attention to the evidence in the case is also apparent in its decision to convict Mykal Derry of brandishing a firearm in furtherance of the drug conspiracy but acquitting Malik Derry of the same charge. We discuss the apparent ramifications of that detailed verdict as it relates to the alleged Brady violations below.

         On January 7, 2016, this Court sentenced Mykal Derry to a total term of life imprisonment plus a consecutive prison term of 120 months, and twenty years of supervised release. (Mykal Derry Sentencing Judgment, Docket No. 848.) On August 19, 2016, this Court sentenced Malik Derry to “life imprisonment plus a consecutive prison term of 120 months, and ten years of supervised release.” (Malik Derry Sentencing Judgment, Docket No. 885.)

         B. Initial Brady Issue: The Brown I FD 302

         Following the jury verdict, but prior to sentencing, Malik Derry wrote a letter to this Court describing a communication he had with Jodi Brown, a co-conspirator.[6] In that letter, Defendant stated that after the trial had ended, Brown, an admitted member of the DDTO, had “mentioned that she made statements concerning the [murder of James] which implies guilt but with an alternative version that the Government alleges in the indictment.” In the letter, Malik Derry also wrote that he had been frustrated in his efforts to get the Brown interview materials and suggested the possibility of an in camera inspection. On May 23, 2016, this Court conveyed to counsel for the Derrys and the Government a copy of that undated letter assuming the statements referred to were statements made to law enforcement.

         Brown's October 28, 2014 FBI interview, following standard procedure, was documented on a Form FD 302 (“302” or “FD 302”). (“Brown I 302, ” Docket No. 903-3.) This Court determined that while the Government had intended to send the Brown I 302 to the defense during trial, it inadvertently had not. (Tr. of August 19, 2016 Hearing (“August Hearing”), Docket No. 893 at 17-18.) Instead, in the midst of trial, and prior to the close of the defense case, one of the prosecutors sent an email dated July 26, 2015, at 4:31 p.m. (Docket No. 873-4) conveying a summary of the prosecutor's notes from the interview. (Tr. of June 17, 2016 Hearing (“June Hearing”), Docket No. 878 at 28, 32-33.)

         In the post-trial June 2016 Hearing, Malik Derry argued the Government's failure to disclose the actual 302 constituted a Brady violation. At that hearing, the Court denied the Brady motion in part, holding that the email summary provided timely disclosure of Brown's statement that she lacked any knowledge of the reason Tyquinn James was murdered and was disclosed in a manner that allowed that information to be utilized by the defense, if they had chosen, at trial. (Docket No. 878 at 45.) Malik Derry moved for an Order granting a Judgment of Acquittal pursuant to a Brady violation. (Defendant's Brady Motion, Docket No. 873.)

         In an August 19, 2016 oral opinion, this Court denied the Brady motion in full, concluding: “To the extent that there was anything in the 302 that was material, that was exculpatory and material, it was not suppressed, it was disclosed [by virtue of the email summary]. To the extent that any additional materials in the 302 were not disclosed, they were neither exculpatory nor ultimately material in this matter.” (Docket No. 893 at 19.) The Court then proceeded to sentencing. (Minute Entry, Docket No. 884.)

         C. Subsequent Brady Issues

         In September 2016, when preparing for the sentencing of a co-conspirator, Ambrin Qureshi, the Government discovered an FBI Form FD 302 summarizing an FBI interview with Qureshi (“Qureshi I 302, ” Docket No. 903-2) in which, like Brown, Qureshi denied having any knowledge as to why Tyquinn James was murdered. On November 14, 2016, the Qureshi 302 was disclosed to Defense counsel. (Letter Supplemental Brief of Defendant, Motion for Indicative Ruling, Docket No. 911 at 3-4.) The Government also provided a copy of a 302 of a post-trial September 2016 interview of Qureshi (“Qureshi II 302”). (Docket No. 903-1.)

         Both Defendants appealed their convictions and the cases were consolidated by the Court of Appeals. On December 7, 2016, Malik Derry filed a motion in the Court of Appeals, asking to include the Qureshi I and II 302s in the record. By Order of December 13, 2016, following the motion of Malik Derry, the Court of Appeals stayed the briefing and resolution of Derry's motion to expand the record pending an indicative ruling by this Court.[7] In its Rule 37 motion, Defendant requested that this Court consider the “newly discovered” evidence, the Qureshi 302s, in the context of Defendant's prior Brady motion involving Brown. (Defendant's Motion for an Indicative Ruling, Docket No. 903 at 14.)

         After the Rule 37 motion was filed, the Government reviewed all of the 302s of the other co-conspirators who proffered information to the Government. “In an abundance of caution, and not because the Government believed it was obliged to do so, ” the Government disclosed two additional 302s regarding interviews of Franklin Simms (“Simms 302”) and Laquay Spence (“Spence 302”).[8]

         In his supplemental briefs in support of his Rule 37 motion, Defendant asks the Court to find Brady violations as to the Brown, Qureshi, and Spence 302s.[9] (Letter Supplemental Brief of Defendant, Motion for Indicative Ruling, Docket No. 911 and Letter Reply Brief of Defendant, Motion for Indicative Ruling, Docket No. 914.) Malik Derry argues he is entitled to an “acquittal of his convictions” (Docket No. 911 at 1) or in later briefing, “complete judgment of acquittal, a judgment of acquittal on the 924(c) count or a new trial pursuant to Fed. R. Crim. P. 33[]” (Docket No. 914 at 20).

         The Government argues the three 302s at issue are not Brady material and therefore Defendant is entitled neither to an acquittal nor a new trial. (Gov. Response to Defendant's Motion for an Indicative Ruling, “Response Brief, ” Docket No. 913 at 55.)[10] At the July 17, 2017 hearing on the pending motions, the United States asked the Court to deny the Defendant's motion in full. (Tr. of July 17, 2017 Hearing, Docket No. 922.)



         Rule 37 of the Federal Rules of Criminal Procedure states:

(a) Relief Pending Appeal.
If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.



         The Federal Bureau of Investigation opened a criminal investigation in approximately October 2010 focusing on violence and heroin trafficking in the Stanley Holmes Village public housing development in Atlantic City, New Jersey. Based upon their investigation, the United States concluded that a drug organization, which the Government called the DDTO, had a fierce grip on Stanley Holmes Village and the nearby area, flooding the neighborhood with heroin and using violence to maintain exclusive control over its territory. The indictments, prosecution, and trial described above followed.

         At the heart of Malik Derry's motion is the argument that the undisclosed 302s would have been of assistance to him at trial in undermining the Government's theory that James was killed in furtherance of the DDTO drug conspiracy. To put that argument in context, it would be helpful to summarize the evidence produced at trial regarding the DDTO and the Derry brothers' involvement in the overall conspiracy.

         A. The DDTO Was a Violent Drug Trafficking Conspiracy

         The evidence at trial showed that the DDTO was a violent drug organization.[11] Malik Derry was one of approximately two dozen members of this gang, although any number of different people came in and out of the conspiracy over time. They referred to themselves as “Dirty Block” or “Crime Fam” and by other names and most lived in and around Stanley Holmes Village. They distributed a large amount of heroin sourced largely from Paterson, New Jersey over a period of years. In addition, they were involved in distribution of other types of drugs.

         The wiretap evidence alone established that it was an organization of persons who used intimidation, fear, and violence to maintain exclusive control over their territory and to control the activities of their potential rivals. They used weapons to protect themselves, their turf, their drugs, their stash houses and their customers from their drug rivals.

         Guns and violence were an integral part of the drug trafficking. Guns were used, stored, and shared by the persons in this conspiracy. When guns were needed or wanted, whether for an unfolding brawl discussed below, or when they were moving as a group or engaged in a risky transaction, they were able to retrieve or request them from stored locations known and available to others in the gang. Guns were bought and shared as the need arose. So, not only were guns used, but they were used collectively, which is evidence that the guns were a part of the conspiracy and used by the co-conspirators freely and for the intended purpose.

         B. Eight Shootings and Other Violence

          The Government described at least eight drug-related shootings the evidence tied to “Derry and his violent drug gang.” (Gov. Statement at Mykal Derry Sentencing Hearing, Hearing Tr., Jan. 7, 2016, Docket No. 854 at 88.) Beyond the torturous assault of Anthony Rosario, who had the audacity to sell heroin within Derry territory sourced from a dealer other than Mykal Derry, the specific instances of violence involving the DDTO included but were not limited to: (1) shootings with rival drug groups including the Trevin Allen gang; (2) the shooting of Anthony Rosario resulting in his paralysis; (3) the brawl at a casino; (4) the killing of Derreck Mack by the police after he fled, armed, from a DDTO stash house; and (5) three shootings at James, the final one fatal.

         1. Territorial Rivalry Between the Derry and Allen Groups

         At one point in time, the Mykal Derry gang and the Trevin Allen gang both sold heroin in Stanley Holmes Village. Something happened to that relationship and as a result, Allen and his followers became the enemies of the DDTO and were banned, under penalty of death essentially, from selling drugs in Stanley Holmes Village and from even entering the Derry territory. Both groups began to shoot at each other. This bitter feud between rival drug gangs forms the backdrop of the story relevant to this motion, that Malik Derry shot Tyquinn James, a member of the Allen gang.

         2. Anthony Rosario Shot and Paralyzed

         Kareem Young, a Government cooperator, testified that Anthony Rosario was kidnapped and brutally assaulted by Mykal Derry and others because he was selling heroin bought from someone other than Mykal Derry. (Direct Examination of Kareem Young, Trial Tr. 4044-53, July 30, 2015, Docket No. 787.) Young testified that Rosario gave a statement to authorities implicating Mykal Derry.[12] (Id. at 4051-52.) According to Young, in retaliation Mykal Derry then ordered the shooting of Rosario which was carried out by Kevin “King Jaffee” Washington, who shot and paralyzed Rosario. (Id.)

         3. The Tropicana Incident

         On the night of December 23 and in the morning of December 24, 2012, there was a protracted brawl between associates of the DDTO and other Atlantic City drug dealers at the Tropicana Hotel. It was captured on surveillance video. The brawl was additional evidence that associates of the DDTO engaged in violence against rival drug dealers.

         After the Tropicana incident, in a wiretapped phone call, Mykal Derry directed his enforcers, Kamal Allen, Kasan Hayes and Shaamel “Buck” Spencer to obtain and carry guns, especially in relation to Yachor Napper and his associates, who were drug trafficking rivals.[13]

         4. The Derreck Mack Shooting Outside of a DDTO Trap House

         Derreck Mack, a teenage boy who was standing guard outside a DDTO trap house, was soon thereafter shot and killed by the police when he refused to drop his gun. At Mykal Derry's sentencing, the Government summarized this evidence including Mykal Derry's wiretapped conversation:

Derreck Mack, when he was killed by the police after he refused to drop a .45 caliber semiautomatic handgun while he was running down the street on December the 17th, 2012, when his body was at the medical examiner or the morgue or whatever, No Limit heroin falls out of his pants. Two or three days earlier Mykal Derry is acquiring No Limit heroin from the suppliers in Paterson. And he had a loaded .45 caliber handgun on him that Mykal Derry and Kamal Allen and others discussed that, oh, yeah, he was strapped and he was talking crazy stuff like he was going to shoot it out with the police. He tells several people that, knowing that Derreck Mack - and he's standing on videotape outside with Terry Davis, another enforcer, and with Derreck Mack. They're not standing out there on - in December for their health. They're standing out there because they're enforcers guarding his trap house.

(Docket No. 854 at 12-13.)

         C. Evidence that Malik Derry was an Enforcer

         Mykal Derry had determined his brother would be one of the DDTO enforcers. On October 8, 2012, according to an intercepted phone call, Mykal Derry told Kareem Bailey, another DDTO enforcer, that his brother Malik would be “strapped” (street slang for armed) when Mykal put Malik on the DDTO payroll to sell heroin, which would occur when Malik was released from prison. (Gov. Exhibit 424) (See Direct Testimony of Special Agent Christopher Kopp, Trial Tr. 1047-50, July 8, 2015, Docket No. 752 (discussing the Exhibit).)

         Several weeks later, after leaving prison, Malik Derry was reportedly involved in a dispute with one of the Derry associates, Saleem “Meatball” Reynolds. According to a wiretapped call, on October 23, 2012, Malik asked Mykal for a gun as he was angry with Reynolds. Another recorded call to Mykal Derry followed, this one from Jermaine Reynolds, the concerned brother of Saleem Reynolds. Mykal Derry reassured Reynolds and said “ratchets” (street slang for guns) would only be used on the “enemy” not on persons from Stanley Holmes Village.

         The Government summarized the wiretapped evidence as follows:

Two weeks later, on October 23, 2012, after he was back on the streets, Malik asked Mykal for “one of them things, ” (a gun), and claimed “I need it.” GX477, Tr. 1276-77. Malik told Mykal that he was at the “Schoolhouse” public housing complex, and told Mykal “Just bring it.” Tr. 1277.
Twenty-five minutes later, another DDTO associate, Jermaine “Bam” Reynolds, complained to Mykal that Malik was threatening Reynolds' “brodies” (friends). GX478; Tr. 1293-94, 1296-98. According to Reynolds, Malik was “threatenin' n*ggers [daring them to] come out, and he ain't fightin', he's talkin' about gun work.” Tr. 12989[sic]-99. Reynolds claimed that Malik was “buggin'” (crazy). Tr. 1298.
Mykal assured Reynolds that he only distributed “ratchets” (guns) for use against “the enemy” (rival drug dealers), not people from “the (Stanley Holmes) village.” Tr. 1298-99. Mykal assured Reynold that if he caught Malik using firearms against non enemies, “I'm f*ckin' him up, man, it's like that.” Tr. 1299.

(Response Brief, Docket No. 913 at 32-33.)

         Thus, according to the intercepted call, enforcers were not to use the “ratchets” on persons from Stanley Homes Village, but rather only on the “enemy” which this Court understood from the evidence to mean the guns were only to be used on rival drug gangs.

         Further wiretap evidence that Malik Derry was an enforcer included telephone calls and text messages between Kimberly Spellman and Mykal Derry soon after the murder of Tyquinn James. In those communications between Spellman and Mykal, Spellman said Malik Derry did not need to go on an anticipated trip to the shooting range to sharpen his skills. According to the communication, Mykal Derry agreed and laughed.

         The use of the guns at the shooting range, in light of the conversations that occurred after the shooting of Tyquinn James, suggests to this Court that those shooting range visits were intended for enforcers to practice for the purposes of being adept, comfortable, and experienced in using those weapons to protect their drug trafficking operations. These calls and text messages are evidence that Malik Derry was one of the enforcers and was expected to practice, along with the other enforcers, at the shooting range.

         Moreover, we think it telling that Shaamel Spencer, who the evidence established was the main enforcer for the DDTO, and who was involved in the first two attempts to kill James, was the first person that Mykal Derry called after Malik Derry shot James. Mykal tells Spencer without any elaboration or explanation necessary, and with chilling coldness, that his brother had just killed James, a task Spencer had attempted twice.

         Thus, the evidence at trial proved that Malik Derry was envisioned to be and became an enforcer. He was to be “strapped” upon return from prison. He sought a weapon to escalate a dispute with someone who was an associate and was told those weapons are just for the enemy. However, he was given a weapon when shooting someone was within the scope and responsibility of being an enforcer.[14]

         D. The Evidence that Malik Derry Murdered Tyquinn James

         1. Mykal versus Malik as the Shooter

         As we noted supra, Mykal Derry took the stand at trial and testified that he shot James after a dispute concerning the affections of a woman. All the other evidence in the case established, however, and without meaningful doubt, that Malik, not Mykal, was the shooter. We agree with the Government's summary of that evidence:

The wiretap calls and text messages both before and after the shooting of James, the surveillance video showing an individual on a bicycle matching Malik Derry's height and physique, but inconsistent with Mykal Derry's shorter and stockier stature, and the physical evidence recovered, including the murder weapon and the bike used by the shooter, unequivocally establish that Malik Derry shot and killed James, and that Mykal Derry ordered the killing. That evidence also showed that Mykal Derry provided the murder weapon to Malik Derry before the shooting and stored the murder weapon in his residence at 727 Green Street (that he shared with his girlfriend Kimberly Spellman) after the killing. See PSR, paragraphs 171-188, Government Exhibits 703a, 706a, 707a, 710a, 715a, 721, 5018a, 7009 (search photographs of 307 MLK Boulevard), 7008 (search photographs of 727 Green Street), and the However, this ignores the common method in which guns were used by the DDTO. Trial testimony established that DDTO associates did not always carry guns as that invited police interaction. Rather, guns were routinely stored in stash houses and available on an as-needed basis. A jailhouse recorded call illustrates this point. Mykal Derry reportedly declined to attend a truce meeting with James who was being shot at by Derry associates. Derry said he had a gun and did not want to go to the restaurant which was frequented by police. (Atlantic City Jail Call between Mykal Derry and Christian Blackman, Gov. Exhibit 5004) (See Direct Examination of Special Agent Christopher Kopp, Trial Tr. at 882, July 8, 2015, Docket No. 752 (discussing the call).) Trial Testimony of Kareem Young, Special Agent Christopher Kopp, and Special Agent David McNamara.

(Letter Brief, United States Response to Brady Motion, Docket No. 880 at 11-12 (footnote and italics omitted).)

         The Government also accurately summarized incriminating telephone calls and text messages that establish that Malik Derry was the shooter: “Less than thirty minutes after the murder, Mykal called perhaps his most trusted lieutenant in the DDTO, Shaamel Spencer, and told him that “Lik just splashed T.Y., you heard? . . . Yeah, that n*gga's gone.” (Docket No. 913 at 29 (quoting Gov. Exhibit 707).) And further:

A few hours after the murder, Mykal and Kim Spellman, another of Mykal's trusted confidants, exchanged text messages. GX721; Tr. 2161. After Spellman texted “first homicide of da year, head shot, ” id., Mykal replied “he gud, he acting like its nothn ctfa (“cracking the f*ck up”), GX721; Tr. 2161-62. Mykal then stated, “this n*gga iz a tru derry.” Tr. 2162. Mykal's reference to a third person (“he”) who was a “tru derry” and was “acting like its nothn” ineffably points the finger at Malik as the shooter.
The following day, Spellman told Mykal in a series of text messages and telephone calls that, unlike other DDTO associates, Malik did not need to go to the shooting range to sharpen his skills. Derry agreed and laughed. GX721, GX722; Tr. 2161-66. That exchange meant that Mykal must have told Spellman that Malik had proven himself to be an accomplished marksman and “a true Derry, ” Tr. 5595, having shot James in the head while riding a bicycle, just as the security video showed.

(Docket No. 913 at 30-31.)

         In one telephone call, Malik expressed his concern that the discovery of the murder weapon in Mykal Derry's apartment would lead to his conviction and lengthy incarceration:

[There was] a call between Malik Derry and Ambrin Qureshi on February 14, 2013 (recorded by the Atlantic County Jail) wherein Qureshi informs Malik Derry that the police found the joint (gun) at Kim Spellman's apartment. Malik Derry responds by telling Qureshi: “It's over” and “now I'm going to get the roof to the max.” See Government Exs. 5018 and 5018A, Trial Testimony of Special Agent Christopher Kopp at pp. 2189-2197, See also PSR, paragraphs 171-183.

(Docket No. 880 at 11 n.8. (italics omitted).)

         In sum, all of the evidence, with the exception of Mykal Derry's confession, establishes that Malik Derry was the shooter and killer of Tyquinn James.

         2. “Brandishing” Versus “Discharging” a Weapon

         An examination of the jury's verdict on the enhanced penalty sections of 18 U.S.C. § 924(c) reveals their assessment of who shot James. Title 18, United States Code, Section 924(c) provides in part:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime- (i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

         Because the statute provides for enhanced mandatory consecutive sentences for a defendant who, in addition to using, carrying or possessing a firearm in furtherance of certain crimes, also “brandishe[s]” a firearm (seven years mandatory consecutive sentence) or “discharge[s]” a weapon (ten years mandatory consecutive sentence), the jury was given special interrogatories to meet the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”).

         The Verdict Sheet shows the jury found Malik Derry and Mykal Derry both guilty of: a) using, carrying or possessing a firearm (Juror Question #5) and b) discharging a firearm (Juror Question #7). However, while the jury also found Mykal Derry guilty of brandishing a firearm, the jury acquitted Malik Derry of the same charge (Juror Question #6) which begs the question of what evidence, or lack of evidence, the jury relied on in making that distinction.

         During deliberations, the jury posed the following question after asking for and being allowed to review the video of the James murder in open court: “If a person is shot without first being intimidated, either verbally or by seeing the weapon in part or in whole, is it safe to say that the weapon was not brandished?” (Court Exhibit 8 (C-8), Docket No. 826 at 8.)

         The Court responded in writing and reiterated its instruction on the meaning of “brandishing” and “discharging” a weapon:

“[B]randish” means . . . to display all or part of the firearm, or . . . otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person. . . “[D]ischarge” the firearm means to fire the weapon, that is, to cause the projectile to be propelled from the firearm.

(Court Exhibit 8 (C-8), Docket No. 826 at 10.)

         The surveillance video of the James murder shows that James never saw the murderer approach him and accordingly never saw or otherwise observed the handgun used to kill him. The use of a bicycle allowed the shooter to reach James quickly and quietly and, at an elevated level, shoot him at point blank range at the base of his skull. James's casual demeanor prior to being killed and his failure to react to the shot or the shooter, except to fall over dead, proves conclusively that James never saw the ...

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