US v. Morgan
| Decision Date | 11 February 2010 |
| Docket Number | No. 09 CR 699(SAS).,09 CR 699(SAS). |
| Citation | 690 F. Supp.2d 274 |
| Parties | UNITED STATES of America v. David MORGAN, Jason Morgan, John Brown, John Franklin, Courtney Branch, Ebrima Jobarteh, and Sheldon Morgan, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Jessica Massella and Parvin Moyne, Assistant United States Attorneys, New York, NY, for the Government.
Karl H. Buch, Esq., Chadbourne & Parke LLP, New York, NY, for Defendant David Morgan.
Mitchell Dinnerstein, Esq., New York, NY, for Defendant Jason Morgan.
Alan M. Nelson, Esq., Lake Success, NY, for Defendant John Franklin.
Lance Croffoot-Suede, Linklaters LLP, New York, NY, for Defendant Ebrima Jobarteh.
On July 16, 2009, defendants David Morgan a/k/a "Bigs," Jason Morgan a/k/a "Sina," John Brown a/k/a "Hollywood," John Franklin, Courtney Branch a/k/a "Snoop," Ebriema Jobarteh a/k/a "Boyz," and Sheldon Morgan were charged with conspiracy to distribute fifty grams and more of crack cocaine in violation of 21 U.S.C. § 846.1 Defendants were previously arrested on June 17, 2009, on charges set forth in a Criminal Complaint sworn to on June 15, 2009, by Special Agent Rodrigo E. Riveros of the Federal Bureau of Investigation ("FBI"). Four of the seven defendants have filed the following pretrial motions:
This Court held a suppression hearing on December 11, 2009, at which time the following witnesses testified: Detective Michael Carinha, New York City Police Department ("NYPD"), Bronx Narcotics Division; Special Agent Rodrigo Riveros, FBI; and Special Agent James Glynn, FBI. Although a majority of the hearing was devoted to the post-arrest statements of John Franklin and Ebrima Jobarteh, this Court heard oral argument regarding the identifications of David Morgan and Jason Morgan and the identification of John Franklin. For the following reasons, all outstanding pre-trial defense motions are hereby denied, except for the motions to suppress the pre-trial identifications of Jason Morgan and David Morgan.
Defendants were the subjects of a joint investigation of the FBI and the NYPD, targeting drug trafficking activity in the area of East 166th Street and Teller Avenue in the Bronx, New York. From May 2008 to May 2009, several NYPD undercover officers working made approximately thirty-eight purchases of crack cocaine from various defendants in the area of East 166th Street and Teller Avenue. In particular, the purchases made by the undercover officers were executed inside Apartment # 5 at 336 East 166th Street (the "Apartment"). The thirty-eight purchases totaled approximately forty grams of crack cocaine. In addition, the undercover officers also observed, on multiple occasions, sales of crack cocaine to other individuals inside the Apartment. At the time of Jason Morgan's arrest, a search warrant was executed for his residence at 1235 East 222nd Street, Apartment # 2, Bronx, New York (the "Morgan Residence"). During this search, police officers found a handgun inside of a closed suitcase located in the Morgan Residence.
On April 4, 2009, an undercover officer from the NYPD (the "UC") purchased crack cocaine from defendants Jason Morgan and John Franklin. In his undercover "buy" report, the UC described John Franklin as a male black, medium build, approximately 23-27 years old, 5'7"-5'309", 175-185 pounds, wearing black frame glasses, a black and white striped shirt, and blue jeans.
On April 4, 2009, the same day that the UC purchased crack cocaine from John Franklin, the UC was shown a photo array prepared by Detective Michael Carinha. The photo array consisted of photographs of six male blacks, all of whom were approximately the same age and none of whom were wearing glasses.6 The UC identified John Franklin as "JD Stripes," the person from whom he purchased crack cocaine (picture # 5).
Detective Carinha testified that he had prepared the photo array shown to the UC on April 4, 2009.7 Detective Carinha decided to put John Franklin's photograph into the photo array based upon a description provided by the UC.8 Detective Carinha obtained the photograph of John Franklin from the NYPD's photo management system.9 The other five "filler" photographs were chosen at random, using an NYPD data bank that selects photographs of persons that look similar to the target photograph, based on the geographic area selected.10 According to Detective Carinha, the UC had no role in preparing the photo array, nor did the UC ask for any specific photographs to be included in the photo array.11 Furthermore, when the UC identified John Franklin as "JD Stripes," the UC indicated to Detective Carinha that he did not know John Franklin before he purchased crack cocaine from him on April 4, 2009.12
On multiple occasions in the winter and spring of 2009, the UC purchased crack cocaine directly from Jason Morgan.13 The date of the first purchase was January 14, 2009. Later that day, after the "buy" was executed, the UC recognized Jason Morgan from a "Set Book," which was previously reviewed by the UC as a customary part of the underlying investigation.14 The "Set Book" in dispute was compiled by Detective Carinha. It is a three-ring binder filled with approximately sixty photographs of individuals targeted by the NYPD in an ongoing criminal investigation, i.e., persons from the neighborhood under investigation that have a history of violence and/or narcotics distribution.15 The Set Book has three dividers, including a divider for the "Teller Avenue Crew."16 The Teller Avenue Crew section contains eleven photographs,17 including the photograph of Jason Morgan (under the name "Edie Ray"), which is behind the photograph of David Morgan.18
The identification of David Morgan parallels the identification of Jason Morgan— in the evening of January 14, 2009, the UC identified David Morgan from Detective Carinha's Set Book as "J.D. Bigs" who was subsequently identified as "Morgan, David."19 As with Jason Morgan, the photograph of David Morgan contained in the Set Book is part of an NYPD "mugshot pedigree," which includes a printout of David Morgan's criminal history, including prior arrest and convictions. David Morgan's photograph is the first photograph contained in the Teller Avenue Crew section of the Set Book.20 At the bottom of David Morgan's mugshot pedigree is the name "Bigga," in handwriting, next to the "Alias" category.21
On June 16, 2009, a magistrate judge issued a search warrant for the Morgan Residence.22 The Warrant Affidavit requests authorization to search the Morgan Residence for documents related to Jason Morgan's drug trafficking activities, including drug ledgers, photographs, and address books, as well as electronic items such as cellular telephones and computers that could be used to store information related to drug trafficking activity.23
In support of the Government's request for a search warrant for the Morgan Residence, Special Agent Rodrigo Riveros set forth facts showing that Jason Morgan in fact lived at the Morgan Residence, including: (1) Jason Morgan had listed the Morgan Residence as his address with the New York State Department of Motor Vehicles; and (2) Morgan had two cars registered to the Morgan residence.24 Special Agent Riveros also provided facts demonstrating that there was probable cause to believe that documents relating to the charged drug trafficking conspiracy would be found in the Morgan Residence, including: (1) Jason Morgan had participated in a conspiracy to distribute crack cocaine with defendants by selling crack cocaine directly to undercover officers on at least fifteen occasions during the course of that conspiracy; and (2) based on the agent's experience in numerous drug trafficking investigations, individuals who participate in drug trafficking often maintain in their homes, for long periods of time, books and records relating to their drug-trafficking activities.25
The search warrant was executed by law enforcement agents at the Morgan Residence on June 17, 2009, while Jason Morgan was being placed under arrest. During the execution of the search warrant, the agents found numerous documents, including bank statements in the name of Jason Morgan, a large amount of cash, and a loaded gun inside of a closed suitcase.
The Second Circuit has held that "the linchpin of admissibility of identification testimony is reliability."26 "The ultimate questions are whether the pretrial proceedings have been conducted in a manner that was unnecessarily suggestive and whether, in all the circumstances, there is `a very substantial likelihood of irreparable misidentification.'"27 When assessing challenges to identification procedures, courts generally must follow a...
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