United States v. Johnson

• Decision Date: 16 September 2019
• Docket Number: S5 16 Cr. 281 (PGG)
• Citation: 452 F.Supp.3d 36
• Parties: UNITED STATES of America, v. Latique JOHNSON, Brandon Green, and Donnell Murray, Defendants.
• Court: U.S. District Court — Southern District of New York

452 F.Supp.3d 36

UNITED STATES of America,

v.Latique JOHNSON, Brandon Green, and Donnell Murray, Defendants.

S5 16 Cr. 281 (PGG)

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

Signed September 16, 2019

Filed September 17, 2019

Andrew Ken-Wei Chan, Max Clement Nicholas, Christopher Jordan Clore, Abigail S. Kurland, Allison Carol Nichols, Jared P. Lenow, Jessica K. Feinstein, United States Attorney's Office, New York, NY, for United States of America.

Eric R. Breslin, Melissa S. Geller, Duane Morris, LLP, Newark, NJ, Susan J. Walsh, Vladeck, Raskin & Clark P.C., Zoe Jayde Dolan, Zoe Dolan, Attorney at Law, New York, NY, for Defendant Brandon Green.

Donald D. Duboulay, New York, NY, for Defendant Thomas Morton.

Richard Bruce Lind, Richard Lind Attorney at Law, Joshua Jacob Horowitz, Horowitz Tech Law P.C., New York, NY, for Defendant David Cherry.

James E. Neuman, New York, NY, for Defendant Manuel Rosario.

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, U.S.D.J.:

Defendants Latique Johnson, Brandon Green, and Donnell Murray are charged in the (S5) Indictment (the "Indictment") with offenses related to the Blood Hound Brims, a gang and alleged racketeering organization engaged in, inter alia, drug distribution and acts of violence. Johnson, Green, and Murray are charged with participating in a racketeering conspiracy between 2005 and December 2016 (Count One); with conspiring – between 2006 and December 2016 – to distribute and possess with intent to distribute at least 280 grams of crack cocaine ("crack"); one kilogram of heroin; five kilograms of cocaine; and marijuana (Count Four); and with using, possessing, carrying, brandishing, and discharging a firearm in connection with the charged racketeering and narcotics conspiracies (Count Five). (Indictment (Dkt. No. 418))¹ Johnson and Murray are also charged with assault and attempted murder in aid of racketeering (Count Two), and Johnson is charged with a second count of assault and attempted murder in aid of racketeering (Count Three). (Id. )

The three defendants proceeded to trial on February 19, 2019, The Government called twenty-one witnesses, including five former members of the BHB. After a five-week trial, on March 27, 2019, the jury returned a verdict finding the Defendants guilty on all counts. (Verdict (Dkt. No. 570))²

Johnson and Green have moved for a judgment of acquittal or a new trial, pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. (Johnson Mot. (Dkt. No. 643); Green Mot. (Dkt. No. 639)) Johnson argues that the evidence at trial is insufficient to prove that (1) he was a member of a conspiracy to distribute cocaine, crack cocaine, and heroin, or that the conspiracy involved the quantities of narcotics the jury found; or (2) he committed assault and attempted murder in aid of racketeering. (Johnson Br. (Dkt, No. 644)) Johnson also argues that the jury's findings – for purposes of Count Five (the Section 924(c) count) – that he brandished and discharged a firearm are inconsistent with its finding – as to Count Two – that he did not commit attempted murder in aid of racketeering. (Id. ) In a supplemental motion, Johnson argues that the jury's brandishing and discharge findings as to Count Five cannot stand in light of the Supreme Court's decision in United States v. Davis, ––– U.S. ––––, 139 S. Ct 2319, 204 L.Ed.2d 757 (2019) – decided three months after the jury rendered its verdict. (Johnson Supp. Br. (Dkt. No. 707))

Green argues that the Government did not establish a nexus between the firearms he possessed and the charged narcotics conspiracy, and thus his conviction on Count Five – the Section 924(c) charge – cannot stand. Green also contends that, as a result, the Court's admission of firearms seized from his apartment was unfairly prejudicial. Green further contends that the evidence is insufficient to demonstrate that he entered into a conspiracy to distribute crack cocaine and marijuana. Finally, Green argues that the jury's finding that the racketeering conspiracy is a "crime of violence" is based on insufficient evidence. (Green Br. (Dkt. No. 640))

Murray joins in Johnson's new trial motion as it pertains to their conviction on Count Two, for assault in aid of racketeering. (See Apr. 25, 2019 Murray Ltr. (Dkt. No. 642)) Murray has also submitted a letter requesting that, in light of the Supreme Court's decision in Davis, his conviction on Count Five be vacated. (August 20, 2019 Murray Ltr. (Dkt. No, 727))

For the reasons stated below, Murray's motion to vacate his conviction on Count Five will be granted. Defendants' motions for a judgment of acquittal or for a new trial will otherwise be denied, As to Defendants' challenges to certain of the jury's findings, the jury's finding that the racketeering conspiracy is a "crime of violence" will be vacated, as will the findings that Johnson brandished and discharged a firearm in connection with a "crime of violence." Defendants' challenges to the jury's findings will otherwise be denied.³

BACKGROUND

I. THE EVIDENCE AT TRIAL

A. The Blood Hound Brims

1. Formation

The evidence established that in 2005, Defendant Latique Johnson – also known as "La Brim" or simply "La" – established the "Blood Hound Brims" ("BHB" or the "Gang") while incarcerated at Attica Correctional Facility. (See, e.g., GX 183 at 2 ("April 26[,] 2005 In Attica C.F. is when ‘BHB’ was Born By Latique ‘La Brim’ Johnson."); GX 189 at 1; Trial Tr. ("Tr.") 2136 (Moore)) From the Gang's inception, Johnson was the "Godfather" ("GF") and its "undisputed leader." (See Tr. 2895 (Rosario) ("[Johnson] was the [G]odfather ... [T]he creator of the [BHB], He's the undisputed leader of the [BHB]."); Tr. 1604 (Jones) ("[Johnson] was the founder slash ... [G]odfather" and "the creator of the [BHB]."))

Johnson recruited members from within the New York State prison system. For example, cooperating witness Michael Adams, a/k/a "Measy" – who was a member of the Gang from 2005 to 2016 (Tr. 155 (Adams)) – testified that he joined the BHB while incarcerated at Comstock Correctional Facility. Adams had received a "kite," or letter, from Johnson stating that Johnson was starting the BHB and "was looking for shooters." (Tr. 157, 159 (Adams)) Similarly, cooperating witness Manuel Rosario – who was a BHB member from 2007 to 2013 (Tr. 2904 (Rosario)) – testified that he "[c]ame to join the Blood Hound Brims [while] in Southport Correctional Facility," after Johnson recruited him.⁴ (Tr. 2892 (Rosario))

When Adams joined the Gang in 2005, it had no more than fifteen members. (Tr. 160 (Adams)) Over the next decade, however, the Gang grew to include approximately 480 members (id. ), and operated "[e]verywhere" in the New York State prison system, as well as in New York City, upstate New York, Pennsylvania, Delaware, New Jersey, North Carolina, Virginia, Texas, and Georgia. (Tr. 162 (Adams); Tr. 2901 (Rosario) (While Rosario was a member of the BHB, the Gang was "[o]perating all over the prison system in New York. It was operating ... in the five boroughs, ... in Pennsylvania, [in] Upstate New York, such as Rochester, Syracuse, Buffalo, Elmira ... [a]nd [in] the federal [prison] system as well."); see also GX 172; GX 173 at 1)

New Gang members took the BHB oath, and were given "a booklet with all the rules [of the BHB] in it, [its] history," and other information about the Gang, (Tr. 826 (Morton); see also Tr. 2892 (Rosario) (testifying that Johnson "g[ave] [him] an oath, ... rules, [BHB] commandments and the material that is needed for recruiting a person so they could know their history and things of the sort"); Tr. 2135-37 (Moore) (describing "paperwork" that contained, inter alia, "[t]he history of the [BHB]," and testifying that he learned the oath after leaving his previous gang to join the BHB))

2. Gang Structure

The BHB is a "set,"⁵ or unit, "of the New York Blood Brim Army [the ‘NYBBA’]."

(Tr. 2890 (Rosario)) The NYBBA is, in turn, "a faction under [the] Bloods," a gang with nationwide reach. (Tr. 2915 (Rosario)) ("Blood[s] is a gang ... all over the United States.... There are hundreds of subdivisions under [the] Blood[s] from East Coast to the West Coast, to all over the globe.... Here on the East Coast our faction of [the Bloods] was the New York Blood Brim Army.") The NYBBA is structured as a "committee" comprised of the Godfathers of nine gangs, all of which are "Brim" sets. (See Tr. 828, 804 (Morton); Tr. 2916 (Rosario)) The gangs or "sets" that make up the NYBBA include, for example, the Blood Hound Brims; the "MacBalla Brims"; the "5-9 Brims"; the "Low Rida Brims"; the "Hit Squad Brims," and the "Mad Hatter Brims." (See, e.g., GX 182, 184, 185 at 5; Tr. 2182 (Moore)) While all of the Brim sets operate within the NYBBA, they do not always peacefully co-exist. For example, as discussed below, "[t]here was a war going on between" the BHB and the MacBalla Brims in 2011. (See Tr. 2977 (Rosario))

The BHB itself consists of numerous subsets, called "pedigrees." (See, e.g., Tr. 1702 (Jones); Tr. 160 (Adams)) The various pedigrees – of which there are approximately sixteen (see Tr. 160 (Adams); GX 902) – are associated with different geographical locations. For example, the "Greyhound" pedigree is based in Harlem; the "220" pedigree is based in the Bronx; and the "Double Breed Wolf Hound" pedigree is located in Westchester and Buffalo. (See GX 902; see also Tr. 160 (Adams)) ("You've got the Bassett, Long Island; Beagle, Queens; 220s, the Bronx; the Greyhound, which is Harlem; O[ ]tter Hounds, which is [Pennsylvania]. It's a bunch, It's 16.") All of the BHB pedigrees are subjected to a "line-up" or "chain of command." (Tr. 159 (Adams); Tr. 2893 (Rosario); Tr. 824 (Morton); Tr. 1602 (Jones))

At the top of the chain of command is the "Godfather" – Defendant Johnson. The Godfather is responsible for appointing the heads of each pedigree, (Tr. 164 (Adams); Tr. 1602 (Jones); Tr. 554 (Adams)) If the Godfather is incarcerated – as Johnson was for...