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United States v. Thornhill

United States District Court, S.D. New York

July 28, 2014


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[Copyrighted Material Omitted]

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For the Government: Rebecca Mermelstein, Esq., Assistant United States Attorney, United States Attorney's Office, Southern District of New York.

For the Mobutu Thornhill, Defendant: Andrew G. Patel, Esq., Lauren Sarah Kessler, Esq., Law Office of Andrew G. Patel, New York, New York.

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On June 20, 2012, Defendant Mobutu Thornhill (" Defendant" ) was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), in a trial before this Court. Defendant now brings this Motion for a New Trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, alleging that his trial counsel's ineffectiveness rendered his trial fundamentally unfair, in violation of the Sixth Amendment of the United States Constitution. For the reasons given herein, Defendant's Motion is denied.


Prior to his trial before this Court, Defendant was acquitted in state court of criminal possession of a weapon in the second degree. Because Defendant's Motion depends in large part on the argument that the absence of certain testimony at his federal trial explains the difference in outcomes between his state and federal trials, the Court will describe both trials in some detail before proceeding to its discussion of the pertinent legal principles.

A. Factual Background

1. Defendant's State Trial

On September 17, 2010, a Westchester County grand jury returned an indictment against Defendant, charging him with criminal possession of a weapon in the second degree, in violation of New York Penal Law § 265.03; criminal possession of a weapon in the third degree, in violation of New York Penal Law § 265.02;

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and resisting arrest, in violation of New York Penal Law § 205.30. (State Trial Tr. 170, 413-14; Def.'s Mem. of Law in Supp. of Mot. for a New Trial (" Def.'s Mem." ) 2 (Dkt. No. 24.) Trial began on March 23, 2011. (State Trial Tr. 126.) In her opening statement, Assistant District Attorney Nadine Nagler (" ADA Nagler" ) told the jury that " [o]n February 15, 2010, [Defendant] had a gun and he got caught. Tried not to get caught, but he got caught. And that's how simple this case is." ( Id. at 170.) Defendant's state-trial counsel, Theresa M. Gerardi (" Ms. Gerardi" ), responded with a brief opening statement of her own, in which she succinctly framed her trial strategy. Ms. Gerardi " ask[ed] [the jury] that [it] . . . keep the District Attorney to her burden of proof . . . and remember that [Ms. Gerardi] [did not] have any burden to prove or disprove anything." ( Id. at 175.) She said that once the jury " listen[ed] to all of the evidence in [the] case, the lack of evidence, the insufficiency of the evidence," it would be brought " to the only just and honest verdict that there [could] be, and that [would] be a verdict of not guilty." ( Id.)

In support of the People's case, ADA Nagler called four witnesses, including three of the police officers who had arrested Defendant, as well as a ballistics expert. The first prosecution witness to testify was one of these arresting officers, Officer Mario Stewart of the Mount Vernon Police Department (" Officer Stewart" ). ( Id. at 176.) Officer Stewart recounted that early in the morning on February 15, 2010, he was on patrol in the area of Mount Vernon in which a bar called The Calabash was located, when he heard " loud yelling and screaming" coming from the bar's direction. ( Id. at 180, 182.) " [W]hat particularly caught [his] eye . . . was a lady in the middle of the roadway frantically waiving her hands . . . trying to get [his] attention." ( Id. at 183.) After Officer Stewart activated his emergency lights and pulled up beside her, she pointed to a man in the vicinity wearing a green jacket, and yelled to Officer Stewart that the man " [had] a gun." ( Id.) At trial, Officer Stewart identified the man in question as Defendant. ( Id.) Officer Stewart recalled that when Defendant heard the woman yell, he looked in the direction of Officer Stewart and the woman and began walking away, with his left hand " waiving [sic] back and forth," while " his right hand was just straight down at his side." ( Id. at 184-85.) Officer Stewart then yelled to Defendant, " police, stop," and began following him. ( Id. at 186.) Defendant did not stop, even though Officer Stewart asked him to do so several additional times. ( Id.) Once Officer Stewart was approximately two or three feet behind Defendant, Officer Stewart was " able to see that [Defendant] . . . had a brown handle of some object . . . in his right hand." ( Id.) When another patrol car " stopped in front of [Officer Stewart] and [Defendant] in the roadway," Defendant " made an . . . abrupt left turn[,] dropping [a] firearm into the snow and then walking towards [Officer Stewart's] direction." ( Id. at 187.)

Two other Mount Vernon Police Department officers exited the vehicle that had just arrived: Officers Murashea Bovell (" Officer Bovell" ) and Eric Byrwa (" Officer Byrwa" ). ( Id. at 188.) Officer Stewart saw Officer Bovell walk " directly to the area where [Officer Stewart saw Defendant] drop the firearm," at which point Officer Bovell yelled to Officer Stewart, " I got a gun." ( Id.) Officer Stewart then shouted for Officer Byrwa to " [g]ive [him] a hand" and " started ordering [Defendant] to get on the ground," but Defendant " refused to do so." ( Id.) Officer Stewart executed a " leg sweep," a type of " tripping maneuver," to " take [Defendant] down to the ground." ( Id. at 188-89.) Defendant

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" continued to actively resist arrest by tucking his hand underneath his body." ( Id. at 188.) With the assistance of Officer Byrwa and another officer, Officer Stewart was finally " able to get [Defendant] into cuffs." ( Id.) Officer Stewart described the area in which these events took place as " well-lit," and noted that there was no one else in the area wearing a green jacket at the time. ( Id. at 190-91.) At trial, he identified a firearm that ADA Nagler introduced into evidence as " [t]he gun . . . that [Defendant] dropped that was recovered at the scene." ( Id. at 191.) Officer Stewart demonstrated for the jury the manner in which Defendant had carried the gun in his right hand. ( Id. at 195-97.) He also identified as accurate depictions of the location where the incident took place a number of photographs that ADA Nagler showed him, and helped ADA Nagler recreate the events as he had described them through the use of a diagram and the positioning of himself and others around the courtroom. ( Id. at 197-210.) The photographs were published to the jury, and the jury was also given an opportunity to visually inspect the gun from a distance. ( Id. at 212.)

Ms. Gerardi then cross-examined Officer Stewart. Among other responses, she elicited from Officer Stewart that the woman who informed him that Defendant had a gun was " pointing towards [a] crowd," to an " area" with " more than one person," ( id. at 223); that Officer Stewart " never got [the woman's] name . . . [,] address[,] or phone number," ( id. at 224); that there were " other people . . . on the street that were near the man with the green jacket when [Officer Stewart] first saw him," ( id. at 227); that Officer Stewart " never actually took [the] green jacket from [Defendant]" or " put [it] into evidence," ( id.); that Defendant did not run away from Officer Stewart once he heard Officer Stewart ask him to stop, but instead " kept walking straight," ( id. at 228-29); and that Officer Stewart could not make out that Defendant was holding a gun before he dropped it, only that he was carrying an object with a brown handle, ( id. at 229-30).

After Officer Stewart stated that there was only one suspect in the case, Ms. Gerardi directed his attention to the police report that he filled out after the incident, which he acknowledged was " accurate" and " true." ( Id. at 231.) Ms. Gerardi gave Officer Stewart time to refresh his recollection, and then asked him how many suspects he wrote down in his report, to which he responded, " It says two, ma'am." ( Id. at 234-35.) In response to questioning, Officer Stewart also stated that, based on his recollection at the time of the incident, Defendant had a " medium to large build." ( Id. at 236-37.) But when Ms. Gerardi asked Officer Stewart what he wrote down in his report about the suspect's build, he responded, " The report said small." ( Id. at 237.) Officer Stewart also said that he " used a computer to complete [his] report," and that " [m]istakes do happen." ( Id.)

Ms. Gerardi then asked Officer Stewart to characterize the firearm that was entered into evidence. ( Id. at 242-43.) Specifically, she asked him whether the firearm was " a pistol," to which Officer Stewart responded, " Yes, ma'am." ( Id. at 243.) She then asked him whether " it could also be a handgun," to which he responded, " It is the same thing, ma'am." ( Id.) When Officer Stewart testified that he signed the evidence property invoice for the gun, that the invoice was accurate, complete, and " [had] everything in [it] that it should," and that he filled it out in the course of the investigation, Ms. Gerardi asked Officer Stewart whether it was " recorded in there that this is a .22 caliber long rifle," to which Officer Stewart

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responded, " Yes, ma'am." ( Id. at 244.) Officer Stewart also confirmed that he signed the superseding felony complaint, which described the weapon that Defendant allegedly possessed as a " Smith & Wesson .22 caliber long rifle." ( Id. at 245.) This line of questioning prompted Officer Stewart to ask the court if he could " explain what the long rifle is," which request the court granted, over Ms. Gerardi's objection. ( Id. at 245-46.) Officer Stewart said that " [t]he reason why the . . . firearm is called a long rifle is because it uses a .22 caliber long rifle ammunition," but that " [i]t is a handgun. It is a pistol." ( Id. at 246.)

Ms. Gerardi also drew out from Officer Stewart his recollection that the snowbank into which Defendant dropped the gun was two-to-three-feet high, but that he had previously testified at a preliminary hearing that he " could not recall" the snowbank's height, ( id. at 259-61); that he had not mentioned anything about seeing the brown handle of an object in Defendant's hand in his police report, and in fact had not done so until he testified before the grand jury, ( id. at 264-65); that even though he had submitted the gun to a laboratory to test for operability, he had never done so to test for fingerprints or DNA, despite the fact that the gun's bullets must have been loaded by hand, one-by-one, ( id. at 268-69, 272); and that he had never performed a gunshot-residue test on Defendant, ( id. at 273).

On re-direct, Officer Stewart testified that he had filed a " supplemental report" in addition to the report about which Ms. Gerardi asked him, and that in his supplemental report, he had listed " the suspect" as Defendant, and had not listed any other suspects. ( Id. at 283.) He also stated that " the only way [that he could] explain" why he wrote down that there were two suspects in his original report was that there had been a " typographical error." ( Id. at 284.) At ADA Nagler's direction, Officer Stewart also read the identifying information stamped into the barrel of the gun: " .22 long rifle CTG." ( Id. at 287 (internal quotation marks omitted).) Responding to Ms. Gerardi's questions about gunshot residue, ADA Nagler asked Officer Stewart whether Defendant had been charged with " actually shooting anyone that night," to which Officer Stewart replied, " No, ma'am." ( Id.) In a brief re-cross, Officer Stewart admitted to Ms. Gerardi that he had made " some . . . typographical errors" in his original report. ( Id. at 289.)

ADA Nagler next called Officer Byrwa, who largely corroborated Officer Stewart's testimony. ( Id. at 290.) He stated that on February 15, 2010, he was patrolling near The Calabash with his partner Officer Bovell, " just to make sure that the bar dismissed orderly." ( Id. at 292-94.) When he turned onto the street on which The Calabash was located, he " saw a large crowd, it obviously was from the patrons from the bar, everyone was screaming and yelling." ( Id. at 294.) He got out of his car and heard someone shout, " There's a gun, there's a gun." ( Id.) At that point, Officer Stewart " directed [Officer Byrwa] over to his attention where [Officer Stewart] was with [Defendant]," and Officer Byrwa " went over to . . . Officer Stewart[,] where [Officer Byrwa] helped [Officer Stewart] apprehend [Defendant]." ( Id.) Echoing Officer Stewart, Officer Byrwa described the difficulty that he and Officer Stewart had in placing Defendant under arrest, given the extent to which Defendant resisted. ( Id. at 295.) Officer Byrwa also identified the gun introduced into evidence as " the firearm that [he] observed in a snowbank . . . the night that [he and Officer Stewart] apprehended [Defendant]." ( Id. at 296.) He did not observe the gun until " after [Defendant] was apprehended." ( Id.) He " believe[d] [that Officer

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Bovell] was standing over the gun, making sure it was secure" during the time that Officer Byrwa and Officer Stewart were attempting to arrest Defendant. ( Id.)

Ms. Gerardi's cross-examination of Officer Byrwa followed a similar format to her cross-examination of Officer Stewart. In response to Ms. Gerardi's questioning, Officer Byrwa admitted that he " never actually saw [Defendant] dropping anything," or " anything in his hand," ( id. at 299); that he never " actually [saw] Officer Bovell retrieve the firearm," ( id. at 302); that he never requested that fingerprints or DNA be taken from the gun, ( id. at 303-04); and that he never conducted a gunshot-residue test on Defendant's clothing or hands, ( id. at 304).

Officer Bovell was the People's next witness. ( Id. at 307-08.) Unlike his partner Officer Byrwa, Officer Bovell testified that he had in fact " observed a black male wearing a green coat holding a black handgun [in his right hand], emerging from a crowd," a person he also identified at trial as Defendant. ( Id. at 311-12.) According to Officer Bovell, Defendant was " walking at some point and then he stopped, and once he stopped, he had then dropped the weapon onto the floor." ( Id. at 312.) While holding the gun, Officer Bovell explained to the jury that the gun's slide " cocks back, which it slides back, which the gun is safe and empty. There is not a live round in the gun. But at the time when [Officer Bovell] saw [Defendant] with the weapon, it was not in [that] position . . . ." ( Id. at 313.) In other words, Officer Bovell testified that when he saw Defendant with the gun, the gun was in such a position as to suggest that it was loaded. With ADA Nagler's assistance, Officer Bovell also demonstrated the angle from which he had observed Defendant walking, and the manner in which Defendant had carried the gun. ( Id. at 314-15.) Officer Bovell said that Defendant was " surprised," and that he " just . . . let [the gun] fall to the ground . . . . He did not throw it, he dropped it from his hand . . . ." ( Id. at 316.) Officer Bovell also confirmed that " from the time that [he] first saw [Defendant] with [the] gun in his hand, until the time that [he] saw [Defendant] drop it," he never " los[t] sight of [Defendant]," and that " as soon as [Defendant] dropped the weapon," Officer Bovell " exited [his] police vehicle towards [the] direction" of " where [Defendant] dropped the gun into the snowbank," and then saw the same gun that Defendant had been holding in the snowbank on the ground. ( Id. at 316-17.)

Officer Bovell further testified that he " then observed . . . that there was a large crowd surrounding the weapon in the area," so he " quickly picked up the weapon" for his and his fellow officers' safety, as well as the safety of the nearby civilians, as he was not aware " whether or not . . . [Defendant] had a friend or somebody [who might have] pick[ed] up the weapon." ( Id. at 317.) " As soon as [Officer Bovell] picked up the weapon, [he] confirmed to Officer Stewart that [he] had the weapon and [that] the party [whom Officer Stewart was in the process of arresting] was the guy who had the weapon," which person was Defendant. ( Id. at 318.) Officer Bovell also acknowledged that he was not wearing gloves when he picked up the weapon, but stated that after Defendant was transported back to headquarters, Officer Bovell " placed the weapon back on the ground the same way [he] took it up, and . . . proceeded to take pictures of it." ( Id. at 318-19.) " [T]he pictures [Officer Bovell] took were of the gun in the same position [in which he] observed it before [he] picked it up . . . ." ( Id. at 319.) ADA Nagler then showed Officer Bovell two photographs, which Officer Bovell identified as those pictures. ( Id. at 319-20.)

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Towards the end of his direct testimony, Officer Bovell recounted that he had observed an officer from the emergency-services unit remove 12 live rounds from the gun's magazine. ( Id. at 320.) He also emphasized that at no point from the time that he observed Defendant holding the gun to the time that he observed Defendant drop it was his view ever obstructed. ( Id. at 321.)

During her cross-examination and re-cross of Officer Bovell, Ms. Gerardi focused mainly on asking him to recount precisely where he had been and what he had observed during the incident, and to indicate his location at various points in time by marking with a pen the photographs that she showed him. ( Id. at 322-41.) Ms. Gerardi also got Officer Bovell to admit that he had seen three people besides himself handling the gun before it was put away for safekeeping. ( Id. at 342.)

The People's last witness was Detective Arthur Holzman of the Westchester County Department of Public Safety (" Detective Holzman" ), a ballistics expert. ( Id. at 343-46.) He testified that on April 29, 2010, he received a firearm from Officer Stewart. ( Id. at 347.) He explained that he then conducted an examination of the gun by taking " two of [the] . . . rounds of ammunition that came with [it], actually load[ing] [them] into [the] firearm[,] and attempt[ing] to fire it." ( Id. at 349.) He had concluded that the " firearm [was] operable." ( Id. at 354.) He also noted that " [i]n a lot of cases, there are not fingerprints found on firearms," " [b]ecause the areas that [a person] touch[es] a firearm or [that a person] commonly manipulate[s] that firearm to fire it, are not smooth . . . . [T]he best fingerprints are left on smooth, flat surfaces." ( Id. at 352.) The areas of the gun that he had examined that would have been manipulated had " a texture on them," which did " not lend itself well to fingerprints." ( Id. at 352-53.) He also suggested that the gun's magazine and cartridges also would not have " len[t] [themselves] to . . . fingerprint[s] being left" on them. ( Id. at 353.) Detective Holzman testified that the gun was a Smith & Wesson Model 422 semiautomatic, which was referred to as a " semiautomatic or auto loading pistol." ( Id. at 350.)

On cross-examination, Detective Holzman confirmed that he was a firearms expert, but not an expert in " fingerprinting" or " DNA." ( Id. at 354-55.) He answered in the affirmative Ms. Gerardi's questions as to whether fingerprints or DNA were " ever" taken from or found on guns. ( Id. at 355.) He also stated that he had appeared 37 times as a ballistics expert at trial, but never for the defense. ( Id. at 356.) Additionally, Ms. Gerardi and Detective Holzman discussed a theme that ran through Ms. Gerardi's cross-examinations of the prosecution's other witnesses--the potentially confusing characterization of the gun as a " long rifle." ( Id. at 356-57.) Ms. Gerardi asked, " You said that it is called a .22 caliber long rifle . . . . But it is not actually a rifle, is it?" ( Id. at 356.) Detective Holzman responded, " I think you're confusing things. The pistol is .22 long rifle caliber. The ammunition that's appropriate for that firearm is .22 long rifle. .22 long rifle has nothing to do with the make or model of this firearm," which was a " semiautomatic pistol." ( Id.) On re-direct, ADA Nagler asked Detective Holzman how many times he had learned of fingerprints being found on a weapon in his 24-year career. ( Id. at 359.) Detective Holzman said that he " could not give a specific number," but that it was " very infrequently." ( Id.) In fact, sometimes Detective Holzman " joke[d] around at work that the guys who check for fingerprints almost never find them on firearms." ( Id.) With the conclusion

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of Detective Holzman's testimony, the People rested. ( Id. at 360.)

The defense called a single witness on Defendant's behalf: Toccara Barley (" Ms. Barley" ). ( Id. at 364-65.) Ms. Barley recalled that on February 15, 2010, at approximately four o'clock in the morning, she was at The Calabash, at a party where Defendant was working as the DJ. ( Id. at 365-66.) She had met up with Defendant at the party; they were there " together." ( Id. at 366.) Ms. Barley knew Defendant " from parties," but was not " his girlfriend." ( Id. at 366-67.) At the end of the party, Ms. Barley and Defendant " were leaving [T]he Calabash [with two other people] . . . [and] going out to [Defendant's] car." ( Id. at 367.) There were " a lot of people outside," because " the club was letting out." ( Id.) The street was crowded. ( Id.) As they left, " [t]here was a commotion in the front [of the bar]." ( Id. at 368.) Ms. Barley was walking approximately five feet behind Defendant, and could see that he was holding " his microphone stand in his right hand and [his] car keys in [his] left [hand]." ( Id. at 368.) When they arrived at Defendant's car, which was parked not directly in front of the bar but " a couple [of] cars" away, Defendant " went to go open the trunk of the car, but it was locked. So he went around to the driver's side. But before he went around to the driver[']s side, he put the microphone stand down in the back of the car." ( Id. at 368-69.) At this point in Ms. Barley's testimony, Ms. Gerardi sought to introduce a microphone stand into evidence, and asked Ms. Barley whether it " fairly and accurately depict[ed] the microphone stand that [Defendant] was holding that evening." ( Id. at 369.) Ms. Barley confirmed that it was the " exact same stand" that had been in Defendant's possession. ( Id. at 370.)

Ms. Barley then demonstrated for the jury how Defendant had held the microphone stand, which was " down to his side in his right hand." ( Id. at 371.) After doing so, she resumed her narrative, and stated that after Defendant put the microphone stand down in the back of the car, he " walked to the driver's side of the car to open the car, and then he came back to the back of the car." ( Id. at 371-72.) Ms. Gerardi asked, " Where was the microphone stand in relation to the car?" ( Id. at 372.) Ms. Barley responded, " In the back of the car." ( Id.) Ms. Gerardi then asked, " So what happened when he put the microphone stand at the back of the car?" ( Id.) Ms. Barley said, " He put the microphone stand at the back of the car, he walked to the driver's side of the car to open it. And he came back to the back, he went to go pick up the microphone stand and that's when the police came . . . ." ( Id.)[1]

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Ms. Barley stated that only one officer came out of the first police car to arrive. ( Id. at 373.) She said that the officer " basically just jumped out the car and told [Defendant] to stop and [Defendant] asked why." ( Id.) " [T]he police officer [then] basically told [Defendant] to get against the car and check him . . . ." ( Id.) Ms. Gerardi asked Ms. Barley, " [D]id [the police officer] say to [Defendant] to stop?" Contradicting the statement that she had made just seconds earlier, when she said that the officer had indeed told Defendant to stop, Ms. Barley said, " No," and also said that the officer " just . . . approach[ed] [Defendant]," and " grabbed him, like, get against the car, like." ( Id. at 373-74.) When asked if there was a struggle, Ms. Barley said, " Somewhat. Not really, but, yeah." ( Id. at 374.) She then described the arrival of a second police car " a few minutes after the first car came," by which point Defendant was already being put in handcuffs. ( Id. at 374-75.) Ms. Barley also testified that Defendant was wearing a green jacket that night, but that there were other people at The Calabash who were also wearing green jackets. ( Id. at 375.) In fact, " two or three people had the same exact jacket on" --the jacket " was . . . popular." ( Id.) Ms. Barley did not see a gun on the ground until " [a]fter [Defendant] was arrested already," and she " [n]ever" saw Defendant throw a gun to the ground, or hold a gun at any point that night. ( Id.)

During ADA Nagler's cross-examination, she inquired into Ms. Barley's relationship with Defendant, specifically asking whether they were " friends." ( Id. at 376.) Ms. Barley responded, " As far as partywise, he is a DJ, so yeah; but other than that, no." ( Id.) Ms. Barley said that she saw Defendant at " a lot of parties" at which he worked as the DJ. ( Id. at 377.) Again contradicting something that she had just said, when ADA Nagler asked Ms. Barley for a second time whether Defendant was " a friend of [hers]," Ms. Barley said, " Not a friend, but an associate, you can say." ( Id.) In response to further questioning, Ms. Barley said that she did not know where Defendant lived; that she was not aware that he lived only " .38 miles," or approximately " five blocks," " from [her] house in the Bronx" ; that she did not know him from the neighborhood; and that, again, she was not friends with him. ( Id.) She also said that she went to the precinct to find out " what was going on with [Defendant]" after his arrest. ( Id. at 378-79.) ADA Nagler asked, " Did you tell them at the police station, [']You got the wrong guy, why is he here, why has he been arrested?'" ( Id. at 379.) Ms. Barley responded, " Yes, and we still got no answer." ( Id.) Ms. Barley then said that the police " would not take a statement from [her]," and that she never went " back to [the police to] tell them, [']What is going on, why has he been arrested?'" ( Id.) She did not go to court the next morning, nor did she " ever go to the District Attorney's Office [to] tell them that [she] had this information," or ever go to the police or the press to inform them that Defendant should not have been arrested. ( Id. at 380.)

ADA Nagler then attempted to impeach Ms. Barley based on her own past misconduct, first getting her to admit that she was " involved in an incident for which [she] pled guilty to harassment in the Bronx." ( Id. at 381.) Ms. Barley said that " [i]t was a misdemeanor" that " [g]ot thrown out, actually." ( Id. at 381.) ADA Nagler said, " Well, actually, it did not get thrown out, you pled to the violation of harassment; is that right?" ( Id.) Ms. Barley

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said, " Yes." ( Id.) ADA Nagler then asked, " And also in that case you were directed to come back to court, but you did not come back to court and a warrant was issued for your arrest; isn't that true?" ( Id.) Ms. Barley responded, " I actually went to all of my court dates. I never had a bench warrant." ( Id. at 382.) ADA Nagler persisted, but Ms. Barley held firm, emphasizing that she " always made [her] court dates." ( Id.) Continuing with the attempted impeachment, ADA Nagler established that Ms. Barley had been working at a grocery store in Mount Vernon for " a year and a couple months," and that she was paid for her work " on the books," before asking Ms. Barley, " But, in fact, . . . aren't you currently claiming unemployment benefits with the Department of Social Services?" ( Id.) Ms. Barley said, " Actually, no, I am not." ( Id.) ADA Nagler pressed the point, but Ms. Barley held firm again, stating three more times that she was not claiming unemployment benefits of any kind. ( Id. at 382-83.) ADA Nagler then had Ms. Barley repeat details of her direct testimony with the assistance of photographs that she showed to her, after which ADA Nagler returned to the subject of Ms. Barley's relationship with Defendant. ( Id. at 383-87.) Ms. Barley said that she had known Defendant for " a couple months, maybe a year. Not that long." ( Id. at 387.) Ms. Barley also stated that she had never " seen [Defendant] outside of his being a DJ," and that she did not know any of his family members. ( Id. at 387-88.)

Possibly picking up on one of the apparent inconsistencies in Ms. Barley's testimony, ADA Nagler then asked, " So when [Defendant] walked up to the car, it is your testimony that you were on the sidewalk and you saw [Defendant] put [the microphone stand] into the car?" ( Id. at 388.) Ms. Barley said, " No. . . . It was sitting on the floor behind the car." ( Id.) ADA Nagler asked, " On the street?" ( Id.) Ms. Barley responded, " Yes. On the street, behind the car. Because he had to go around and open the door, so he sat it down . . . . After he opened the door, he came back around to open the trunk . . . . He went to go pick it up, and that's when the police came." ( Id.) Ms. Barley confirmed that the microphone stand " was . . . still on the street" when the police arrived. ( Id.) Ms. Barley also recounted that Defendant had said that he did not know " what [the officer was] arresting him for," ( id. at 390); " asked [the officer] why he was being arrested," ( id.); and " turned back around, like, Why? Asked Why," ( id. at 391). Near the end of her cross-examination, ADA Nagler questioned Ms. Barley about her relationship with Defendant yet again. ( Id. at 404.) Specifically, ADA Nagler asked if Defendant knew Ms. Barley's phone number, to which Ms. Barley responded affirmatively. ( Id.) ADA Nagler then asked if that meant that Ms. Barley was " friends with [Defendant]," but Ms. Barley said, " Not friends. As DJ, or I'm throwing a party, come to the party. That's about it. Not friends." ( Id.) Ms. Barley also said that Defendant had never been to her home, and that she had never been to his. ( Id.) After this testimony, the defense rested. ( Id. at 408.)

The People then called Officer Stewart as a rebuttal witness. ( Id. at 408.) Showing Officer Stewart the microphone stand that the defense had introduced into evidence, ADA Nagler asked if Officer Stewart had ever seen it before. ( Id. at 409.) He said, " No, I have not." ( Id.) He also said that it was not " possible that the object that [he saw Defendant] holding . . . prior to [Officer Stewart] apprehending him" was the microphone stand. ( Id. at 409.)

Ms. Gerardi began her summation by claiming that Defendant was " the wrong man."

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( Id. at 437.) Ms. Gerardi said that " [the People's] case [was] full of reasonable doubts, and [that she] intend[ed] to show [the jury] what they [were]." ( Id.) She claimed that there was " no physical evidence" --" no fingerprint evidence" and " no DNA evidence." ( Id.) According to Ms. Gerardi, " [f]ingerprint evidence would have told [the jury] right away who was really holding that gun . . . [,] [b]ut the Mount Vernon Police Department failed to preserve the integrity of that gun when they handled it." ( Id. at 437-8.) Ms. Gerardi then went into detail about the number of people who touched the gun before it was secured, and the manner in which they did so. ( Id. at 438-39.) She made a similar case for the lack of DNA evidence. ( Id. at 439-40.) Additionally, she said that " [t]here was also another failure . . . in this particular case, [which] was [the failure] to investigate any possible witnesses." ( Id. at 440.) " [T]he evidence [was] that there were 60 to 80 people [who] were standing in front of [T]he Calabash when [Officers Stewart, Byrwa, and Bovell] came to the scene," but there was " no evidence whatsoever that any investigation of any of those people in front of that location ever took place." ( Id. at 440.) Instead of asking " anybody any questions," the police had " just acted on what somebody in the street said and then went and got that person, arrested him, and that was it." ( Id.)

Ms. Gerardi spent most of her remaining time attacking the testimony of Officers Stewart, Bovell, and Byrwa, claiming that Officer Stewart's and Officer Bovell's testimony was " unreliable, untrustworthy, contradictory and full of mistakes." ( Id. at 441.) In particular, she emphasized the apparent inconsistencies between the officers' testimony and what they had written down in their police reports, specifically in relation to the description of the type of gun that Defendant had allegedly dropped, Defendant's build, and the number of suspects that the police originally thought might have committed the offense. ( Id. at 443-45.) For example, she stated that Officer Stewart " wrote down the word 'rifle' . . . [f]our times in a felony complaint that he signed when, in fact, the object that was alleged to have been held in [Defendant's] hand was a handgun." ( Id. at 445.) She also underscored what she believed to be tension between Officer Bovell's and Officer Byrwa's testimony. ( Id. at 446.) Additionally, she argued that the serial number for the gun that Officer Stewart wrote down on an evidence receipt was " a different serial number from the serial number that Detective Holzman testified to." ( Id. at 444.) Lastly, she spent a comparatively short amount of time describing Ms. Barley's alternative version of what happened and attempting to undermine ADA Nagler's efforts to discredit Ms. Barley, stating that " if [it] were actually true" that Ms. Barley was " collecting unemployment benefits at the same time that she was working," " that evidence would be before [the jury]." ( Id. at 447-48.) After defending Ms. Barley's decision not to go to court the day after Defendant's arrest, Ms. Gerardi said, " I think the bigger issue and the more important question is, is there any evidence in the record that the police did their job in questioning witnesses?" ( Id. at 448-49.) " [I]n conclusion," Ms. Gerardi said that " there is no DNA evidence, there is no fingerprint evidence, there is no investigation of witnesses, there is just contradictions and inconsistencies. And the end result here . . . is that the Mount Vernon Police Department arrested the wrong man, an innocent man. And there can only be one right verdict for the wrong man, and that is a verdict of not guilty." ( Id. at 449.)

ADA Nagler's summation need not be described in depth. As she put it, " [Defendant]

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had the gun, [the police] saw him with the gun, and he was arrested. There [was] no other reason for [Defendant] to have been arrested. There were a number of people out there. If [the police] did not see the gun in [Defendant's] hand, he would not have been arrested. And it is that straightforward and it is that simple." ( Id. at 450.) Responding to Ms. Gerardi's emphasis on apparent weaknesses in the People's case, ADA Nagler spent little time discussing Ms. Barley and her testimony. ( Id. at 449-63.)

After the conclusion of ADA Nagler's summation, the court instructed the jury " with respect to the law and [its] deliberations." ( Id. at 463.) By mutual agreement of the prosecution and defense, in the end the court did not end up including in its jury charge criminal possession of a weapon in the third degree, as the defense's case did not turn whatsoever on whether the gun was loaded at the time Defendant allegedly possessed it. ( Id. at 430-31.) As a result, the court's jury charge included only two offenses: criminal possession of a weapon in the second degree and resisting arrest. ( Id. at 431, 475-479.) At the conclusion of the court's jury instructions and related remarks, the jury was excused and began deliberating. ( Id. at 487.)

During its deliberations, the jury sent the court several notes, in which it asked to review eight different types of evidence, including " Info from witness about mic stand--was evidence the stand at scene," " Defense attorney testimony when the mic stand was put in evidence," and " 'DEF,' which [the court took] as Defense, 'witness regarding mic stand.'" ( Id. at 490, 494-95.) The jury also asked for " 'chart on parking at scene, large chart also DEF,' which [the court took was] Defendant's, 'chart on street'" ; " attorney testimony about conflicting serial number on weapon and report; " " Officers Byrwa and Bovell's testimony on arrival at the scene" ; and " Officer Stewart's statement on when other officers arrived," in addition to requesting to see " evidence, Exhibit Number 26," and " expert's report on Exhibit Number 26." ( Id. at 490, 495.) The jury's requests regarding Exhibit 26 related to " the gun, . . . ammunition[,] and magazine," which the court " [gave the jury] an opportunity to see." ( Id. at 495.) The court was unable to supply the jury with any expert's report on the gun, ammunition, and magazine, as no such report was entered into evidence. ( Id. at 495.) The jury later requested to review Officer Stewart's police report, which request the court denied, as that report was also not in evidence. ( Id. at 509.) The jury also later asked to review all of Officer Bovell's testimony, which request the court granted. ( Id. at 522.)

The jury eventually found Defendant not guilty as to the first count, criminal possession of a weapon in the second degree, but guilty as to the second count, resisting arrest. ( Id. at 525-26.)

2. Defendant's Federal Trial

On November 8, 2011, after Defendant was acquitted on the state gun-possession charge, a federal grand jury returned an indictment charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). ( See Dkt. No. 5; Def.'s Mem. 5.) This Court presided over Defendant's federal trial, which began on June 19, 2012. (Federal Trial Tr. 27.) Just as had ADA Nagler, Assistant United States Attorney Rebecca Mermelstein (" AUSA Mermelstein" ) called Officers Stewart, Byrwa, and Bovell in support of the Government's case. The testimony that the arresting officers gave at the federal trial need not be described in depth, as it substantially mirrored the testimony that they gave in state court, except in

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several key respects that the Court will discuss shortly. But beyond calling these three officers, AUSA Mermelstein's trial strategy differed significantly from ADA Nagler's, as became clear from the outset of her opening statement:

So let's talk a little bit about what happened. It was February 15th of 2010. It was about four o'clock in the morning. And the defendant was walking on a street outside a night club in Mount Vernon, New York. The owner of the night club was standing inside the doorway, and he was watching as patrons left for the night . . . . And as the owner looked down the street, just a few car lengths away from where he was standing, he saw a man emerge from between two parked cars. The man was wearing a green hooded jacket. And in his hand, in his right hand, he was holding a gun. It was a .22 caliber, Smith & Wesson, semiautomatic, long-barrel handgun. And it was loaded with twelve rounds of ammunition. So the club owner went back into the club. He closed the door, and he went to call the police. But as it turns out, the police were already in the area.

( Id. at 15-16.)

The club owner in question was Errol McKenzie (" Mr. McKenzie" ), whom AUSA Mermelstein called as her fourth witness. ( Id. at 173.) Mr. McKenzie testified that he owned a business that was known at the time Defendant's arrest took place as " The Calabash nightclub[] [and] restaurant." ( Id. at 174.)[2] From the night of February 14, 2010 through the early morning of February 15, 2010, Mr. McKenzie was working at The Calabash, as " there was a party there." ( Id. at 175.) The theme of the party was " R& B oldies," and the party's promoter, whom Mr. McKenzie had hired, had in turn hired a DJ to provide the music. ( Id. at 175-76.) Before that night, Mr. McKenzie had " never met the DJ." ( Id. at 176.) Sometime between 3:25 a.m. and 3:30 a.m., Mr. McKenzie " observed . . . three or four ladies. They were like arguing and starting to . . . gesticulat[e] on the dance floor[,] . . . shouting out in the direction of the DJ." ( Id.) Mr. McKenzie " instructed the bartenders to . . . turn the lights up[,] . . . and . . . instructed [a member of his security personnel] to have [the ladies] ejected." ( Id.) After they were removed and Mr. McKenzie " saw them . . . go through the exit, [he] went and [he] stood at the exit . . . observing them leaving." ( Id. at 177.) From his vantage point, he was able to see the street outside, which was " reasonably bright because . . . there were no leaves on the trees and there were approximately three streetlights." ( Id. at 177.) After two-to-three minutes " standing there," two different " ladies" began " standing by the door in front of [him]." ( Id. at 178.) " [T]hey were waiting on somebody to come and get them." ( Id.) At that point, Mr. McKenzie " observed to [his] right, approximately 50 feet to 55 feet [away], an individual come between from behind a Ford Explorer and a . . . parked car." ( Id.)

This individual " looked like a male," " wearing a . . . green hooded jacket," and " looked to be about [six-feet or six-feet-one-inch tall], weighing approximately 200[] [or] 220 pounds." ( Id.) " As soon as [the individual] came between the vehicles and stepped on the sidewalk, he turned towards . . . The Calabash," and Mr. McKenzie " observed a weapon in his right hand." ( Id.) When AUSA Mermelstein asked Mr. McKenzie what kind of weapon

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it was, Mr. McKenzie said that it " appeared to [him] to be a [.]22 long rifle target pistol." ( Id.) AUSA Mermelstein asked him how he could " know with such specificity what kind of gun it was?" ( Id.) Mr. McKenzie replied that it was " by [his] experience in weapon recognition. [He] served for two years as the regiment weapons officer for [his Jamaica Defense Force] army unit." ( Id. at 178-79.) He described his role as a regimental weapons officer as " maintaining weapons efficiency in small arms among the troops," and confirmed that he " in particular use[d] or traine[d] [w]ith the .22 caliber long barrel handgun." ( Id. at 179.) He also explained that this weapon was called a " long rifle" because of the " [t]ype of ammunition used." ( Id. at 179.)

" The moment" that " [the] man in the green jacket" " turned towards the club and [Mr. McKenzie] recognized the weapon, [he] had a decision to make[:] evade or defend. [He] could only evade at that point," which he did by " [r]un[ning] for cover." ( Id. at 179-80.) He " pull[ed] the two ladies that were in front of [him] . . . in," and " shut the door." ( Id. at 180.) He then " instructed [his] security people [to] shut the other door, the entrance, because there[] [was] somebody approaching with a weapon." ( Id.) He had the two ladies " stay back in the dark because there[] [was] a window in front which [was] open." ( Id.) Mr. McKenzie " then jumped on [his] telephone to speed dial the . . . Mount Vernon Police, at which point [he] saw flashing lights . . . from . . . a police car." ( Id.) He had an " opportunity to observe if the police arrested anyone that night," as " the moment [he] realize[d] [that the police] were outside, [he] opened the door[] [and] went outside. [He] saw . . . two or three police officer[s] present on the sidewalk." ( Id. at 180-81.) He also saw " a police car surrounded . . . with some police officers. And in the middle of the group, being put into the car was an individual," who " was wearing . . . what appeared to be the same green hooded jacket." ( Id. at 180.) Later, he " got a better look at the person who had been placed under arrest," " [w]hen the car moved off from the loading point . . . [and] slowed down on passing the club." ( Id. at 181.) Mr. McKenzie " looked in the back and . . . got a closer look at the jacket. [It] seemed to be the same jacket that [he] saw, the person wearing it." ( Id.) " The person was actually slumped over, and [Mr. McKenzie] just observed the shoulders of the jacket with the hood . . . . [It was] . . . similar [to the] jacket [that he] saw the person with the weapon walking towards the club in." ( Id. at 182.) When AUSA Mermelstein asked if Mr. McKenzie " would . . . say that it was similar or . . . that it was the same," he said, " Similar and same is the same word in English." ( Id. at 182.)

Mr. McKenzie then identified a Government exhibit as a photograph of the front of the premises of The Calabash, and indicated with a laser pointer where he had been standing and where the man in the green jacket had been standing when he saw him. ( Id. at 182-83.) He also explained that there were three lights on the sides of nearby buildings, as well as three streetlights in the area. ( Id. at 184.) Mr. McKenzie also indicated where he saw the man in the green jacket being put into the police car. ( Id. at 185.) " From the time when [Mr. McKenzie] first started watching patrons leaving that evening until [he] saw the man in the green jacket driving away in a police car," Mr. McKenzie never saw " anyone other than that person wearing that green jacket." ( Id. at 186.)

Defendant's federal-trial counsel, Susanne Brody (" Ms. Brody" ), cross-examined Mr. McKenzie. ( Id.) She first asked Mr. McKenzie if he could identify an invitation to the party at The Calabash and a photograph

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of the DJ booth at The Calabash on the night in question, which he could. ( Id. at 186-88.) Ms. Brody then asked Mr. McKenzie if he had visited the police station after the arrest, which Mr. McKenzie said that he had--in fact, he " hand[-]wrote a statement" for the police, and " [met] with them . . . several [additional] times after." ( Id. at 188-89.) Ms. Brody also asked a series of general questions about The Calabash's operations, such as how many bartenders and security guards had been working on the night of the party, what role the security guards played, and who hired the security guards. ( Id. at 189-90.) Mr. McKenzie also testified that he did not know when Defendant arrived at The Calabash that evening; that Defendant was already there when he arrived; that he did not see Defendant enter the club with any equipment; and that he did not recall Defendant visiting the bar, where Mr. McKenzie was working, at any point that night. ( Id. at 190-92.) Ms. Brody also asked Mr. McKenzie a series of questions on topics ranging from whether the club's kitchen was open on February 14, 2010, to how many windows there were on the DJ booth. ( Id. at 192-94.)

Notably, Ms. Brody further questioned Mr. McKenzie about a security camera focused on the entrance to the club. ( Id. at 197.) Mr. McKenzie said that the purpose of the camera was " [t]o record people entering and leaving through the entrance," but that its range was limited, and that it was not put in place " to see what's happening on the street." ( Id. at 197.) The Calabash maintained cameras " inside as well." ( Id. at 198.) Images for all of the cameras were " recorded on a hard drive," which stored the recordings " for approximately 30 days before it . . . record[ed] over" them. ( Id.) Mr. McKenzie stated that " on various occasions," police officers had viewed his security-camera videotapes, but that to the best of his knowledge, no officer had reviewed the videotapes for the night of the incident. ( Id. at 198-201.) However, " two officers" at the Mount Vernon Police Department " [had] access" to the videotapes, " [e]ven [when Mr. McKenzie was] not at the club," and " could have gone on, sign[ed] themselves on and check[ed] it out." ( Id. at 200-01.)

Ms. Brody also elicited from Mr. McKenzie an admission that the man with the green hooded jacket that he had seen carrying a gun had pulled the jacket's hood over his head, such that his face was obscured. ( Id. at 201-02.) As a result, Mr. McKenzie " had no opportunity to observe his face," especially because he was " focused on the gun." ( Id. at 202.) He " couldn't actually . . . see inside that hood because [there was] low light inside [the hood]." ( Id.) He did not recall ever seeing the jacket inside his club at any time that night, and never said to any of the police officers that the man whom he had seen being arrested was his DJ. ( Id.)

On re-direct, Mr. McKenzie suggested that most people were not wearing their winter coats inside the club. ( Id. at 203.) He also stated that at no point during the night did he see either of the two Mount Vernon police officers " who knew about the video surveillance." ( Id. at 204.) Despite not being able to see into the hood of jacket, Mr. McKenzie did state that " [b]y quick recognition, [he] would say [that the man in the green jacket] was Afro-American," " [b]ecause . . . the hand holding the weapon was clearly visible," and if the suspect had been " Caucasian, [he] would [have been] able to tell . . . ." ( Id. at 205.) At the end of re-direct examination, Mr. McKenzie suggested that his video-surveillance camera would not have captured the area of the street in which he observed the man in the green jacket carrying the gun. ( Id. at 205-06.)

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As noted above, before calling Mr. McKenzie, AUSA Mermelstein had called Officers Stewart, Byrwa, and Bovell, who gave testimony almost identical to that which they gave at Defendant's state trial. ( See Def.'s Mem. 5 (" At his federal trial, all three officers . . . testified essentially the same as they did at the State trial; that [Defendant] was apprehended outside of the nightclub after Officer Stewart and Officer Bovell saw him with a gun in his right hand." ).) However, given the importance of Officer Stewart's testimony at Defendant's state and federal trials, one distinction between the testimony he gave at each proceeding deserves mention. Atx Defendant's state trial, ADA Nagler finished her direct examination of Officer Stewart without asking any questions designed to elicit from Officer Stewart that there were possible inconsistencies between his recollection of the night's events and what had been recorded about those events in the police report that Officer Stewart filled out and the evidence-property invoice that he signed. In fact, it was not until Ms. Gerardi asked Officer Stewart about the report and the invoice that the jury heard about these documents, much less any inconsistencies contained therein.

However, AUSA Mermelstein took a different tack at Defendant's federal trial. During her direct examination of Officer Stewart, AUSA Mermelstein asked him whether he had " fill[ed] out any paperwork" in connection with Defendant's arrest. (Federal Trial Tr. 47.) Officer Stewart said that he had " filled out a police report, the evidence receipt for the firearm, and also a few other paperwork." ( Id.) He said that he had filled out this paperwork " [t]he same night of the arrest," which meant that he had started filling it out at " about 5:30 AM, that morning." ( Id. at 48.) He also said that he had reviewed his report prior to testifying. ( Id.) AUSA Mermelstein then asked him whether the report was " correct and accurate," to which Officer Stewart responded, " For the most part, yes." ( Id.) When AUSA Mermelstein asked " [w]hat about it [was] not accurate," Officer Stewart responded as follows:

There [were] some typographical errors on it. There's a box on the report that says [" ]number of suspects.[" ] I listed [" ]two[" ] when it should only have been [" ]one.[" ] Also, I did make a mistake in writing [Defendant's] address. I put that he lived in Mount Vernon, and I subsequently was able to correct that by hand that he lived in the Bronx. And also his build that night, his build, his body size that night. I checked small when it should have been medium . . . . There's about, if I remember, maybe about a hundred and some odd different boxes on that report that has to be checked off, and it's just some typographical mistake . . . .

( Id.)

Anticipating the potentially confusing issue of the gun's nomenclature in light of the type of ammunition it uses, AUSA Mermelstein fronted this subject as well, in her direct examination of Mr. McKenzie, as described above. ( See id. at 178-79.) The only other aspect of the Government's case that bears mention for present purposes is that the Government did not call Detective Holzman or any other ballistics expert.

As for the defense's case, shortly before the Government called Mr. McKenzie, Ms. Brody represented to the Court that she was planning to call as many as four witnesses, one of whom was Ms. Barley. ( Id. at 172.) But when it came time for Ms. Brody to call Ms. Barley, in an exchange at ...

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