U.S. v. Bannister, 10–CR–0053.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Citation786 F.Supp.2d 617
Docket NumberNo. 10–CR–0053.,10–CR–0053.
PartiesUNITED STATES of Americav.Damien BANNISTER, Darrell Bannister, Christopher Hall, Cyril McCray, Eric Morris, Roger Patrick, James Ross, Derrick Tatum, Indio Tatum, Jawara Tatum, and Pedro Torres, Defendants.
Decision Date08 April 2011

786 F.Supp.2d 617

UNITED STATES of America
v.
Damien BANNISTER, Darrell Bannister, Christopher Hall, Cyril McCray, Eric Morris, Roger Patrick, James Ross, Derrick Tatum, Indio Tatum, Jawara Tatum, and Pedro Torres, Defendants.

No. 10–CR–0053.

United States District Court, E.D. New York.

April 8, 2011.


[786 F.Supp.2d 621]

Loretta Lynch, United States Attorney, Eastern District of New York, by Daniel S. Silver and Seth David DuCharme.Joel Cohen, New York, N.Y., for defendant Damien Bannister.Jeremy L. Gutman, New York, N.Y., for defendant Darrell Bannister.Robert L. Moore, Quesada & Moore, LLP, West Hempstead, N.Y., for defendant Christopher Hall.John S. Wallenstein, Garden City, N.Y., for defendant Cyril McCray.Michael H. Soroka, Mineola, N.Y., for defendant Roger Patrick.Erika McDaniel Edwards, Donaldson, Chilliest & McDaniel, LLP, New York, N.Y., for defendant Derrick Tatum.Heidi C. Cesare, Federal Defenders of New York, Inc., Brooklyn, N.Y., for defendant Jawara Tatum.Margaret M. Shalley, Fasulo, Shalley & DiMaggio, LLP, New York, N.Y., for defendant Pedro Torres.
Amended Statement of Reasons Pursuant to 18 U.S.C. § 3553(c)(2)
JACK B. WEINSTEIN, District Judge:
+----------------------------------+
                ¦Introduction ¦623¦
                +----------------------------------+
                
I. Facts 624
                
 A. Place 624
                
 1. Bedford–Stuyvesant 624
                 2. Louis Armstrong Houses 626
                
 a. Physical Environment 626
                 b. Residents 627
                
 B. Conspiracy 628
                
 1. Members of Conspiracy 628
                 2. Investigation of Conspiracy 629
                
 C. History and Sociology 630
                
 1. Roots of African American Segregation and Poverty 631
                
 a. Segregation and the Civil Rights Movement 631
                 b. Urbanization and Unemployment 632
                
 2. Government Efforts to Alleviate Poverty and Poor Living 633
                 Conditions
                
 a. Public Housing 633
                 b. Welfare Policy 634
                
 3. Economic and Social Conditions of Those in Defendants' 635
                 Position
                
 a. Racial Segregation 636
                 b. Poverty and Unemployment 636
                 c. Health Problems 638
                 d. Family Structure 638
                
 e. Undereducation 639
                 f. Social Values 641
                 g. Prevalence of Crime 642
                
 4. Victims of Crime 644
                
 D. Anti–Drug Abuse Act of 1986 645
                
 1. Historical Drug Sentencing Laws 645
                 2. Congressional Awareness of Racial Disparity 646
                 3. Procedural Irregularities in Legislative History 646
                 4. Departures from Established Penal Policy 647
                 5. Racially Disparate Impact 648
                
 E. Incarceration Policy 649
                
 1. Mass Incarceration 649
                 2. Racial Disparity 651
                 3. Consequences 653
                
 a. Inmates, Families, and Communities 653
                 b. Collateral 653
                 c. Fiscal 654
                
 4. Alternatives 655
                
 a. Generally 655
                 b. Non–Incarceratory Sentencing 656
                
 5. Effectiveness in Reducing Crime 657
                
 a. Rehabilitation 657
                 b. Incapacitation 659
                 c. General and Specific Deterrence 660
                
 6. Employment and Social Integration of Ex–Prisoners 661
                
II. Law 662
                
 A. Sentencing Rules 662
                 B. Equal Protection 663
                
 1. Mandatory Minimum Sentences 663
                 2. Framework 664
                 3. Discriminatory Effect 664
                 4. Discriminatory Purpose 664
                 5. Conclusion as to Constitutionality 666
                
 C. Rationale 668
                
 1. General Deterrence 668
                 2. Specific Deterrence and Rehabilitation 668
                 3. Incapacitation 668
                 4. Retribution 669
                
III. Application of Law to Defendants 670
                
 A. Excessiveness 670
                 B. Individual Defendants 670
                
 1. Damien Bannister 670
                
 a. Background 670
                 b. Offense 671
                 c. Sentence 672
                
 2. Darrell Bannister 672
                
 a. Background 672
                 b. Offense 673
                 c. Sentence 674
                
 3. Christopher Hall 674
                
 a. Background 674
                 b. Offense 675
                 c. Sentence 675
                
 4. Cyril McCray 676
                
 a. Background 676
                 b. Offense 677
                 c. Sentence 678
                
 5. Roger Patrick 678
                
 a. Background 678
                 b. Offense 679
                 c. Sentence 679
                
 6. Derrick Tatum 680
                
 a. Background 680
                 b. Offense 681
                 c. Sentence 682
                
 7. Jawara Tatum 682
                
 a. Background 682
                 b. Offense 685
                 c. Sentence 685
                
 8. Pedro Torres 685
                
 a. Background 685
                 b. Offense 686
                 c. Sentence 687
                
 C. Summary of Sentences Covered in this Memorandum 687
                
IV. Conclusion 688
                

[786 F.Supp.2d 623]

Introduction

Almost filling the jury box were the defendants—Damien Bannister, Darrell Bannister, Christopher Hall, Cyril McCray, Eric Morris, Roger Patrick, James Ross, Derrick Tatum, Indio Tatum, Jawara Tatum, and Pedro Torres—eleven males, ranging in age from twenty-one to forty-nine, ten African American and one Hispanic. Fully occupying the well of the court were counsel for the defendants, assistant United States attorneys, agents of the Federal Bureau of Investigation, and a phalanx of United States Marshals. Jammed into the gallery were defendants' anxious mothers, girlfriends, other family members, and friends.

The indictment embraced twenty-three counts connected by a conspiracy to sell, and the selling of, crack cocaine and heroin in the hallways of, and the streets surrounding, a public housing project in Brooklyn between September 2007 and January 2010. Guns were carried. The lives of the residents were made miserable by the attendant depravity and violence. These were serious crimes.

The unspoken questions permeating the courtroom were: How did these eleven come to this pass, and what should be done with them if they were convicted, as all of them eventually were, by guilty pleas? Some of the unsatisfactory answers in such all-too-frequent urban tragedies are discussed in the memorandum that follows.

The issue of what should be done about these defendants, and others like them, is central to the law's rationale for the heavy mandatory minimum incarceratory sentences being imposed in this case. For a number of the defendants, they are much heavier than are appropriate. One of our most thoughtful jurists reminds us, “[o]ur resources are misspent, our punishments too severe, our sentences too long.” Justice Anthony M. Kennedy, Address at the American Bar Association Annual Meeting, San Francisco, Ca. (Aug. 9, 2003), available at http:// meetngs. abanet. org/ webupload/ commupload/ CR 209800/ newsletter pubs/ Justice_ Kennedy_ ABA_ Speech_ Final. pdf. See also id. (“I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise and unjust.”).

[786 F.Supp.2d 624]

As a group, defendants grew up in dysfunctional homes characterized by a combination of poverty, unemployment, undereducation, crime, addiction to drugs and alcohol, physical and emotional abuse, and the absence of an adult male role model. They attended low-functioning public schools with limited resources to help students with their in- and out-of-school difficulties. Most dropped out of school, habitually abused drugs and alcohol from an early age, and found little lawful employment. They became involved in a gang of illegal narcotics distributors, which turned to guns and violence, contributing to the degradation of their community.

While the defendants are before this court because of choices they themselves have made, the limited options available to them are partly the fixed artifacts of history. Their story begins hundreds of years ago with the enslavement of African Americans. It runs through Reconstruction, Jim Crow, northward migration, de jure and de facto segregation, decades of neglect, and intermittent improvement efforts by government and others.

Protection of the public requires serious terms of incarceration. But enforcement of the harsh mandatory minimum sentences required by Congress imposes longer terms of imprisonment than are necessary. Such long years of incarceration and separation from relatives generally increase the likelihood of further crime by these defendants and their children.

Nevertheless, strong efforts will be made by the Bureau of Prisons to help educate the defendants and provide occupational training. Drug and alcohol treatment will be made available. Upon their release from prison, the court's probation service will provide strict, day-to-day supervision and assist in attempts to obtain essential jobs.

I. FactsA. Place
1. Bedford–Stuyvesant

The conspirators operated in and around Louis Armstrong Houses, a public housing development in the Bedford–Stuyvesant (“Bed–Stuy”) section of Brooklyn. Bed–Stuy is a large neighborhood in northern Brooklyn bound by Flushing Avenue to the North, Broadway and Saratoga Avenue to the East, Atlantic Avenue to the South, and Classon Avenue to the West. Kenneth T. Jackson, Encyclopedia of New York 94 (1995). It is named for two nineteenth-century communities, Bedford and Stuyvesant Heights. The first Europeans to occupy the area were Dutch settlers who bought the land from Native Americans in the seventeenth century and farmed it with the labor of African slaves. It was home to communities of free Blacks as early as the 1830s. From the nineteenth century through the mid-twentieth century, Bedford and Stuyvesant were populated by a fluctuating mix of Dutch, Germans, Scots, Irish, Jews, Italians, and African Americans. Id. In the 1940s the area became known as Bedford–Stuyvesant, and subsequently it became home to a majority African American and Afro–Caribbean population. See id. at 94–95.

Most of Bed–Stuy's housing stock consists of brownstone and brick row houses. Id. at 95. Present also are numerous large housing projects, including some high-rise developments. See, e.g., New York City Hous. Auth., NYCHA Housing Developments: Lafayette Gardens, http:// www. nyc. gov/ html/ nycha/ html/ developments/ bklyn lafayette. shtml (last visited Mar. 14, 2011) (describing a complex of buildings up to twenty stories tall).

Bed–Stuy is the largest African American neighborhood in New York City. Jackson, supra, at 95. It is the northernmost

[786 F.Supp.2d 625]

of several predominantly black neighborhoods in Brooklyn lying east of Flatbush Avenue, which roughly bisects the borough. See Mapping America: Every City, Every Block, N.Y. Times, http:// projects. nytimes. com/ census/ 2010/ explorer (last visited Mar. 11, 2011) (“ Mapping America ”) (interactive map indicating racial distribution from 2005 to 2009). Other neighborhoods in this group are...

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