UNITED STATES OF AMERICA, Appellee, v. MARK ANTHONY MYRIE, a/k/a Buju Banton Defendant/Appellant.

On Appeal from the United States District Court for the Middle District of Florida District Court Case Number 8:09-CR-572


DAVID OSCAR MARKUS MONA E. MARKUS A. MARGOT MOSS MARKUS & MARKUS, PLLC Attorneys for Appellant 40 N.W. 3rd Street, Penthouse One Miami, Florida 33128 Telephone No. (305) 379-6667 Facsimile No. (305) 379-6668 THIS CASE IS ENTITLED TO PREFERENCE (CRIMINAL APPEAL)

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT United States v. Mark Myrie No. 11-13077AA Appellant files this Certificate of Interested Persons and Corporate Disclosure Statement, listing the parties and entities interested in this appeal, as required by 11th Cir. R. 26.1. Adam B. Allen Anita M. Cream Wayne C. Golding, Sr. James Mack David Oscar Markus Mona E. Markus Timmy McClain Mary A. Mills Honorable James S. Moody Anita Margot Moss Mark Anthony Myrie a/k/a Buju Banton Counsel for Co-defendant James Mack Assistant United States Attorney Counsel for Co-defendant Ian Thomas Co-defendant Counsel for Appellant Mark Myrie Counsel for Appellant Mark Myrie Counsel for Co-defendant Ian Thomas Counsel for Co-defendant James Mack United States District Judge Counsel for Appellant Mark Myrie


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Linda J. McNamara James Preston David Rhodes Marc David Seitles Ian Thomas Honorable Thomas Wilson

Deputy Chief, Appellate Division Assistant United States Attorney Assistant United States Attorney Counsel for Appellant Mark Myrie Co-defendant United States Magistrate Judge

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STATEMENT REGARDING ORAL ARGUMENT Appellant Mark Myrie respectfully requests oral argument because it will assist the Court in understanding the multiple legal issues presented in this case.


TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . C-1 STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 I. AS BOTH A MATTER OF LAW AND FACT, MYRIE IS NOT GUILTY OF CONSPIRACY TO DISTRIBUTE COCAINE OR TO AID AND ABET OTHERS IN USING THE TELEPHONE TO FACILITATE A COCAINE DISTRIBUTION CONSPIRACY . . . . . . . . . . . . . . . . . 35 IN THE ALTERNATIVE, THE GOVERNMENT’S EFFORTS TO IMPLICATE MYRIE CONSTITUTED ENTRAPMENT BECAUSE MYRIE LACKED PREDISPOSITION TO PARTICIPATE IN A DRUG CONSPIRACY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 THIS CASE MUST BE DISMISSED DUE TO THE DISTRICT COURT’S VIOLATION OF THE SPEEDY TRIAL ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 ii



CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61


TABLE OF CITATIONS CASES: Bloate v. United States 130 S.Ct. 1345 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 54, 55, 56, 58 Jacobson v. United States 503 U.S. 540 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 47, 53 Sherman v. United States 356 U.S. 369 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Zedner v. United States 547 U.S. 489 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 56, 59 United States v. Arbane 446 F.3d 1123 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 United States v. Bradfield 113 F.3d 515 (5th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 United States v. Brown 43 F.3d 618 (11th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 45 United States v. Fernandez 797 F.2d 943 (11th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . 35, 38, 39, 40, 42


United States v. Gonzalez 183 F.3d 1315 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 United States v. Hall 181 F.3d 1057 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 United States v. Jenkins 779 F.2d 606 (11th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 United States v. Jones 601 F.3d 1247 (11th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 United States v. Jordan 544 F.3d 656 (6th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 United States v. Kelly 749 F.2d 1541 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 41 United States v. Kington 875 F.2d 1091 (5th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 United States v. Lozano-Hernandez 89 F.3d 785 (11th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 United States v. Mulgado-Patida 402 Fed. Appx. 367, 2010 WL 4627875, (10th Cir. 2010) . . . . . . . . . . . . 59


United States v. Newton 44 F.3d 913 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 United States v. Odeesh 937 F. Supp. 637 (E.D. Mich. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 52 United States v. Padron 527 F.3d 1156 (11th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 United States v. Pantoja-Soto 739 F.2d 1520 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 United States v. Pillado 656 F.3d 754 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46, 48 United States v. Poehlman 217 F.3d 692 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53 United States v. Rivera 775 F.2d 1559 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 43, 44 United States v. Russo 796 F.2d 1443 (11th Cir.1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 United States v. Stanley 24 F.3d 1314 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41


United States v. Theagene 565 F.3d 911 (5th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 United States v. Theron 782 F.2d 1510 (10th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 58 United States v. Toler 144 F.3d 1423 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 United States v. Villegas 911 F.2d 623 (11th Cir.1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 United States v. Williams 314 F.3d 552 (11th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 United States v. Wright 63 F.3d 1067 (11th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 United States v. Young 39 F.3d 1561 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42


STATUTORY AND OTHER AUTHORITY: 18 U.S.C. § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 18 U.S.C. § 924(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 27 18 U.S.C. § 3161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . en passim 18 U.S.C. § 3162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 18 U.S.C. § 3231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 18 U.S.C. § 3742 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 21 U.S.C. § 841(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 27 21 U.S.C. § 843(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 43, 44 21 U.S.C. § 846 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 27 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 FED. R. APP. P. 32(a)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61


STATEMENT OF JURISDICTION The district court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. The jury delivered its verdict on February 22, 2011. DE280. The district court entered the Judgment on June 23, 2011. DE319. The appeal was timely filed on July 5, 2011. DE321.


STATEMENT OF THE ISSUES 1. Whether the district court erred in failing to grant Myrie’s judgment of acquittal as a matter of law, where: a. the undisputed evidence is that Myrie did not agree to participate in the drug conspiracy that eventually was reached among others (Count I), and Myrie had almost no participation in the telephone call forming the basis of the government’s charge that he aided and abetted the “facilitation” of a drug conspiracy, and in fact the telephone call in question did not facilitate a drug conspiracy in any event (Count III).



Whether the district court erred in failing to find that Myrie was entrapped as a matter of law, where there was no evidence that Myrie was predisposed to engage in a cocaine distribution scheme, and the undisputed evidence was that the government pursued a lengthy, intense, unrelenting campaign to target Myrie through an unsupervised paid informant who was desperate to earn a cut of the deal. Whether the district court erred in failing to dismiss the case based on the expiration of the speedy trial clock.



STATEMENT OF THE CASE This case is about how a career criminal, who has been paid over $3.3 million by the government, relentlessly pursued a Grammy-award winning reggae star with no prior convictions, and vowed never to stop trying to turn him into a drug dealer even though his target repeatedly said no. Using every trick and pressure point he had learned to use over his lengthy career of making crime, Alex Johnson became frustrated that he couldn’t get Mark Myrie (who is known as Buju Banton) to do anything other than talk. So he tricked Mr. Myrie into a warehouse of cocaine, telling him that they were going to have some fun on a boat and to discuss how Johnson could help Myrie with his music career. Even though Myrie realized at that point that Johnson was for real and broke off contact with him, Myrie was arrested two days later after Johnson did a deal (unbeknownst to Myrie) with Myrie’s friend Ian Thomas, while Myrie was home in bed across the state. I. Statement of the Facts The main characters: the recording artist versus the con artist The appellant in this case, Mark Myrie, is known by millions around the world as the beloved Grammy-winning Jamaican reggae star Buju Banton. He is the “voice of Jamaica,” who went out of his way to help the people of Jamaica. Stephanie Black, 2/16AM, 90:13-93:10; Gramps Morgan, 2/16PM, 5:24-6:25; Stephen Marley, -3-

2/16PM, 13:20-14:3. Though raised by a single mother in substantial poverty, he raised himself up by his bootstraps to a successful music career and his role as the primary provider for a large family. Myrie, who has no prior record, has a reputation as an honest, law-abiding person who neither uses nor distributes cocaine.1 Black, 2/16AM, 93:11-94:12; Morgan, 2/16PM, 5:24-6:25; Marley, 2/16PM, 13:20-14:3. Myrie’s life was turned upside down by one man: the government’s star “informant” and witness, Alexander Johnson. This man is a convicted drug trafficker who, after his life of crime, committed to a life of creating criminals for money. Millions. Even more than he made as a drug trafficker. As a drug trafficker, Johnson brought thousands of kilograms of cocaine and marijuana into the United States. Johnson, 2/15PM, 29:23-6, 37:7-10. In 1993, he was arrested and was looking at a life sentence. Id. at 30:7-19. He negotiated a deal that reduced his sentence to 21 ½ years, and then cooperated to get the sentence down to 10 years. Id. at 30:22-32:7. After just two and a half years in jail, Johnson worked out an even better deal pursuant to which the Government asked a judge to further reduce his sentence, and he was released on 5 years of probation. Id. at 33:2-16, 34:15-18. Then, at the Government’s request, Johnson’s probation was terminated

Even after his conviction, hundreds of friends, family, and fans wrote to the district judge explaining how good a person that Myrie is. DE311, 312. -4-


after just two months. Id. at 33:17-20. Although not a U.S. citizen, Johnson (a convicted felon) was not deported to his native Colombia. Id. at 37:16-38:3. Johnson parlayed his experience as a criminal into a lucrative career. Id. at 34:19-35-6. Over the course of almost 15 years, he made over $3.3 million as a confidential informant for various government agencies.2 Special Agent Daniel McCaffrey, 2/14PM, 42:11-13; Johnson, 2/15PM, 27:8-16. Johnson’s “job” was to be a confidential informant. Johnson, 2/15PM, 72:13-18. Yet despite the huge sums of money he earned as a confidential informant, at the time the events of this case ensued, Johnson was broke. He had not been paying his taxes, and according to the I.R.S. he owed approximately $200,000 as of the time of trial. McCaffrey, 2/14PM, 82:25-83:6. The IRS even sent a lien to the DEA so that future payments would be made from DEA to the IRS instead of Johnson, but that lien was lifted a day before he was paid $50,000 for his work in this case. Johnson, 2/15PM, 40:7-43:3. He declared bankruptcy in July 2010. Johnson, 2/15PM, 43:22-44:6. In addition to owing the IRS money, he hadn’t paid his credit cards or his mortgage. Id. at 44. He made a plan with

Johnson often is paid by government agencies in cash, and the government does not keep track of how much he has been paid. McCaffrey, 2/14PM, 81:2482:12; Johnson, 2/15PM, 27:20-23. Accordingly, it is possible that the $3.3 million figure is an underestimation. -5-


the bankruptcy judge to pay these items over time, but he didn’t live up to that plan and had to amend it 6 times by the time of trial. Id. at 45. In addition to his financial incentive to make new cases, Johnson’s life in the United States depends on it. The immigration authorities have told him on numerous occasions that he will not be naturalized because of his prior offense, but the DEA has ensured that he and his family are permitted to stay in the country so long as he is working for them. Johnson, 2/15PM, 38:1-25. In a different proceeding in the Middle District of Florida, the district court found that Johnson’s testimony “not to be entirely truthful” based upon his “extensive criminal history, his career of defrauding others, his financial incentives to provide testimony favorable to the Government, and his demeanor during his testimony.” Def. Ex. 4.3 The events leading to Myrie’s indictment: Johnson targets the first class passenger sitting next to him on a flight from Europe On July 26, 2009, after completing a concert tour, Mark Myrie was seated in the first class cabin on a flight from Barcelona to Miami. His seat assignment would lead him to the most unfortunate “chance encounter” of his life. AUSA James Preston,

In Myrie’s first trial, the district court precluded Myrie from introducing this evidence. Trial 1, Vol. III, 9/22/10, at 24. Myrie preserved the objection to the district court’s ruling in the retrial. 2/15PM 22:20-23:3. -6-


2/14PM, 8:15-18. Unbeknownst to Myrie, the person sitting in the seat next to him was a professional informant, Alexander Johnson. Johnson, 2/15PM, 27:8-16. As set forth above, Johnson has made millions of dollars not only by providing information to law enforcement about existing criminal enterprises, but (as here) by creating new criminal enterprises expressly in order to be able to “inform” the government and earn his fee. McCaffrey, 2/14PM, 40:13-21, 42:11-13. After takeoff, Johnson (who was desperate for a payday because of his financial problems) immediately befriended Myrie and began encouraging him to drink. Myrie, 2/16PM, 27:14-20. Myrie complied, drinking steadily and enjoying his conversation with Johnson. Johnson, 2/15PM, 48:9-49:7 (describing how they drank wine, champagne and scotch and how they laughed and partied for 8 hours on the flight); Myrie, 2/16PM, 30:15-21. At one point, Myrie stepped into the coach cabin to visit with members of his crew. Upon returning to his seat in the first class cabin, the flight attendant stopped him and sought to return him to coach. Johnson stepped in, vouching for Myrie and advising the flight attendant that Myrie was, in fact, a first class passenger. Myrie, 2/16PM, 29:14-30:6. Well into the flight, Johnson brought up drugs. Id. at 30:22-31:9. Myrie, a “big talker,” participated in the conversation. Id. at 31:8-12. But it was just boastful and drunken talk between the two; no


agreement whatsoever was proposed or reached. Johnson, however, was desperate for money and decided to pursue Myrie. Johnson’s campaign against Myrie begins, but nothing happens Johnson called Myrie the day after the flight and asked Myrie to get together for a meal. Johnson, 2/15PM, 53:4-11. Myrie agreed, and on July 27, they met at a restaurant in Fort Lauderdale near Myrie’s home in Tamarac. Johnson, 2/15AM, 15:610. Myrie brought friends, and the group ate and drank, enjoying each others’ company. Johnson ordered bottle after bottle of wine. Johnson, 2/15PM, 54:4-9; Myrie, 2/16PM, 34:11-14. Johnson told Myrie and his friends that he was “part Jamaican” as a result of spending so much time there. Id. at 59:6-11. And after two hours and 13 minutes of casual conversation, just three minutes after Myrie stated he had drank too much wine,4 and while they were already outside about to get in their cars, Johnson (not Myrie) decided it was the right time to bring

Id. at 60:8-15. Johnson admitted that he was encouraging Myrie to drink more because “[i]t’s part of the game I’m playing there.” Johnson, 2/15PM, 63:1620. -8-


up the subject of cocaine.5 Johnson, 2/15PM, 54:16-19, 56:13-15, 57:14-21. Johnson admitted that he had to bring it up at that point because Myrie had not. Id. at 57:3-21. Although Johnson testified that the only reason he went to meet Myrie was to talk about a cocaine deal, id., Myrie “wasn’t there to discuss any drugs with Mr. Johnson.” Myrie, 2/16PM, 34:19-22. Myrie initially responded to Johnson, “Relax, not now,” and then said “relax” again. Johnson, 2/15PM, 66:5-10; D. Ex. 24. But Johnson kept pushing, and then Myrie joined in the conversation, boasting (falsely) that he sometimes invested in drug deals.6 Gov. Ex. R20b. Despite the talk, no agreement whatsoever was proposed or reached. In what would become an oft-repeated pattern, Myrie then was supposed to come visit Johnson in Sarasota, but he did not, nor did he call. Johnson, 2/15PM, 64:25-8. Johnson explained that it was important to get Myrie to travel to the west coast so that he could show that they were not just talking. Johnson, 2/15PM, 68:1023. So, three days later on July 30, Johnson called Myrie to “confirm a luncheon” for

In this conversation and every one to follow, it was always Johnson who brought up the subject of drugs, not Myrie. Attached to this Brief as Exhibit A is a summary of the contacts between Johnson and Myrie, demonstrating who initiated the contact (almost always Johnson) and who brought up drugs (always Johnson). Johnson understood Myrie obviously to be boasting when he discussed things like $50 million drug deals. Both Johnson and the case agent agreed that there was no evidence that Myrie had done any of the things he had discussed. Id. at 73; McCaffrey, 2/14PM, 78:21-79:1, 80:16-24. -96

the following day. Gov. Ex. R1b. Myrie told him that “plans have come up,” so Johnson pushed to change the date to that Saturday. Myrie cancelled again, and they agreed on the following Wednesday. And Myrie cancelled yet again. Id. at 64:967:12. Concerned that Myrie kept cancelling, Johnson travelled to the east coast to see Myrie again on August 1, and they met to hang out at a local Marriott along with another of Myrie’s friends. Johnson, 2/15PM, 67:18-22, 68:24-69:9; Gov. Ex. R21b. After an hour and eight minutes, during which Johnson stated he was going to help Myrie with his music career, id. at 81:14-16, Johnson initiated a conversation about cocaine. Id. at 68:5-7. Once again, Myrie joined in the conversation, boasting about large drug transactions that Johnson agrees Myrie never had actually done.7 Johnson, 2/15PM, 71:1-8, 72:13-18, 73:4-12; Myrie, 2/16PM, 37:24-39:3. Myrie’s talk was so nonsensical to a real drug dealer like Johnson that Johnson had to continually correct him. Id. Despite the talk, no agreement whatsoever was proposed or reached, Johnson, 2/15PM, 81:3-4, and Myrie never did any of the things they speculated about during the conversation. Johnson, 2/15PM, 74:12-81:2. It was “all talk” as far as Myrie was concerned. Myrie, 2/16PM, 38:14-17. The Government investigated Myrie’s boasts regarding his participation in other drug transactions and did not find any evidence to corroborate any of it. McCaffrey, 2/14PM, 78:21-79:1, 80:16-24. -107

And again, although they had discussed that Myrie would come see Johnson on the west coast in the next week,8 Myrie cancelled yet again. Johnson, 2/15PM, 84:111. On August 4, three days after the Marriott get-together, Johnson called and Myrie declined to speak with him, stating “you’re going to have to call me back.” Id. at 84:16-23; Gov. Ex. R3b. So Johnson called again the next day, Gov. Ex. R4b, telling Myrie “[f]ood is at the table, the boat is ready.” Myrie responded that he couldn’t make it. Johnson, 2/15PM, 85:4-25. At that point, over an eight day period, Myrie had cancelled four or five proposed gatherings on the west coast of Florida. Id. at 86:3-5. Johnson keeps pushing and will not stop despite Myrie’s obvious disinterest Johnson did not give up his efforts to get Myrie to Sarasota in order to trap him in a sting. Instead, over a four month span, he relentlessly pursued Myrie by calling him repeatedly. Often, Myrie would not take the calls nor would he call back. When he did call Johnson back,9 Johnson repeatedly sought to convince Myrie to come out

Johnson was pushing Myrie to come to Sarasota (on Florida’s west coast) because that was where he was planning to set up a surprise flash. Johnson, 2/15PM, 88:15-19; 95:17-25. Although Myrie sometimes placed calls to Johnson, these were to return Johnson’s call, not new communications initiated by Myrie. Myrie, 2/16PM, 40:6-10 (“I would never on my own initiative get up and call Mr. Johnson”). -119


to Sarasota. Myrie repeatedly declined, and on those occasions in which he agreed to see Johnson, he subsequently cancelled or did not show up.10 Johnson, 2/15PM, 87:789:11, 89:18-94:8 (Johnson contacting Myrie on August 4, 5, 24, September 3, 12, Oct. 14, Nov. 3); Gov. Ex. R5b, R6b, R7b, R8b, R9b. Myrie never initiated a conversation about cocaine, McCaffrey, 2/14PM, 92:15-23, and in fact cocaine was not discussed on any of the recorded calls (only when Johnson brought it up at the live meetings). Despite Myrie’s repeated, consistent refusals to go to Sarasota, Johnson never gave up, and admitted he never would have: Q. A. Q. A. Q. A. Q. A. If he doesn’t call you back, what do you do? I call him again. Why? Because it’s part of the case, it’s part of what I need to do to make the case go. But when do you say enough is enough? Actually, the case is open and we proceeding with the case, I gonna continue to pursue the case. The fact of the matter is you never say enough is enough. The fact is I continue the case until I’m told to stop.

Johnson, 2/15PM, 89:7-17. As Johnson acknowledged, “for five months [he was] trying to get [Myrie] over to see [him] and for five months he [] either cancelled or

Myrie testified that he sometimes agreed to meet Johnson even though he had no intent to go because Johnson was “getting overbearing in my mind. I would tell him anything that he wanted to hear, but I wasn’t going.” Myrie, 2/16PM, 36:18-24. -12-


said no.” Id. at 94:3-8. And although Johnson had been given permission to pursue the investigation, he was not supervised on his calls. Id. at 98:14-23. Johnson increases the pressure even though Myrie continues to say no In early December, Johnson stepped up his campaign to create a drug transaction that would earn himself a fee. On December 4, 2009, after texting Myrie, he called Myrie again. Gov. Ex. R10b. Presumably because Myrie had been unwilling to make the journey all the way to Sarasota, Johnson this time urged Myrie to come see him in Naples, which was closer. Johnson, 2/15PM, 94:9-97:6. Myrie said no. Id. at 97:4-6. But Johnson didn’t give up, instead telling Myrie “I only came here today because of you,” and giving him a “guilt trip” to come the next day. Johnson, 2/15PM, 98:24-99:9. Because Myrie felt bad refusing to see his friend who had made a special trip, Myrie, 2/16PM, 39:18-40:5, Myrie said that he would drive to Naples on December 5. But he did not, and he didn’t call Johnson either. Johnson, 2/15PM, 99:10-100:8; McCaffrey, 2/14PM, 86:19-23. On December 6 and 7, Johnson (without recording the calls) called Myrie three times and again pressured him to come visit in Naples. Johnson, 2/15PM, 100:12-101:4. McCaffrey, 2/14PM, 86:24-88:22; Myrie, 2/16PM, 41:1-8. Myrie did not call Johnson at all. Johnson, 2/15PM, 100:24-101:2; McCaffrey, 2/14PM, 88:23-25.


Finally, on December 8, after Johnson’s repeated “guilt trip” on December 4, 6, and 7 (Johnson, 2/15PM, 101:8-13), Myrie drove with a friend, Ian Thomas,11 and a woman to visit Johnson in Naples, based on Johnson’s promise that they would hang out and “have some fun” on a friend’s boat. Johnson, 2/15PM, 101:14-102:6; McCaffrey, 2/14PM, 89:15-25; Myrie, 2/16PM, 42:18-43:1. Johnson also told Myrie that they could discuss his music career and that Johnson could help him. Johnson, 2/15PM, 76, 81. Johnson used Myrie’s career and other tactics like using concepts of family and engaging in legitimate seafood businesses (Johnson, 2/15PM, 80) because everything else (including getting Myrie drunk) had failed to accomplish his goal of getting Myrie to the west coast. Id. at 84. Significantly, Myrie (and Thomas) had no idea Johnson was bringing them to see drugs. Johnson, 2/16AM, 10:19-23, 12:9-20; McCaffrey, 2/14PM, 89:15-90:3; Myrie, 2/16PM, 45:14-20. This was by design, as the DEA had worked with Johnson to set this up as a “surprise flash.” McCaffrey, 2/14PM, 46:13-15; Johnson, 2/16AM, 23:19-2:10. Upon arriving in Naples, where Johnson had said they would get together for a social visit, Myrie called Johnson. Johnson directed Myrie to keep driving “a little

Myrie usually did not drive himself while in the United States. Thomas owned a car service and frequently drove Myrie. Myrie, 2/16PM, 42:5-14. -14-


bit further” and directed him to Exit 210, which was Sarasota (the destination that Myrie had been unwilling to go to before). Myrie, 2/16PM, 41:11-23. They met at a restaurant, where Johnson went inside and ordered drinks, and told Myrie about the possibility of setting up a meeting with his people in Los Angeles regarding Myrie’s music career. Myrie, 2/16PM, 43:14-44:16; Gov. Ex. R22b. Johnson (and not Myrie) invited Thomas inside to join them. Myrie, 2/16PM, 44:17-21. They agreed that they would go spend time on a boat. Johnson never advised Myrie they were going to see drugs. McCaffrey, 2/14PM, 93:3-12; Johnson, 2/15AM, 92:3-5; Myrie, 2/16PM, 45:14-20.12 In the car, Johnson once again brought up Myrie’s music career, and told Myrie that he knew people in Los Angeles who could put up big dollars to put him on a bigger stage. Johnson, 2/15PM, 17:10-19:10. Johnson tricks Myrie into a warehouse and does a “surprise flash” of cocaine Instead of heading to the marina, Johnson took them to a warehouse to conduct the “surprise flash” of cocaine. Johnson, 2/15AM, 91:25-92:13. Spanish-speaking undercover detectives from the Sarasota Police Department were inside the warehouse.

Myrie testified that he would never have driven to Sarasota if he had been told he was going to see cocaine. Myrie, 2/17 PM, 31:25-32:24. This is the very reason Johnson had to trick him. In every single communication between Myrie and Johnson, it was always Johnson – and not Myrie – who brought up the subject of cocaine. Id. at 31:15-24. -15-


Johnson, 2/15AM, 92:9-13. Myrie was immediately intimidated and scared and asked to go to the bathroom, but was refused. Myrie, 2/16PM, 47:19-48:3; 48:20-49:17; Gov. Ex. R23b. Much to Myrie’s surprise, Johnson opened the trunk of a car, and showed Myrie and Thomas that it contained cocaine. Myrie, 2/16PM, 48:4-9. At Johnson’s urging, Thomas slit open the bag and tasted the cocaine. Johnson, 2/16AM, 20:17-20; Myrie, 2/16PM, 48:10-15. Trying to play it cool, Myrie then imitated him. Johnson, 2/16AM at 20:14-20; Myrie, 2/16PM, 48:10-49:3. Myrie, realizing that this was no longer just talk, did not want to participate in the conversation. Instead, he went to sit on the couch and removed himself from the conversation. Myrie, 2/16PM, 49:18-50:3; Johnson, 2/16AM, 20:25-21:1 (Myrie sat “off to the side”). At one point Myrie tried to leave the warehouse, but Johnson called him back in. Myrie, 2/16PM, 50:5-6. In contrast, Johnson and Thomas began talking in earnest about doing a deal, and Thomas said he had the ability to put it together by connecting Johnson with people he knew. Myrie did not participate in the

conversation except to suggest that Thomas should find out how much the buyer wanted and to suggest that Johnson and Thomas should exchange numbers. Johnson, 2/16AM, 21:25-22:2. Myrie did this because he wanted nothing to do with their drug deal. Myrie, 2/16PM, 50:16-51:2. In fact, when Johnson told Thomas to take another


look at the cocaine, Myrie said “Junior, stop it.” Johnson, 2/16AM, 23:7-13; Gov. Ex. R23b at 7. And significantly, Johnson and Thomas did not reach a deal at the warehouse. Johnson, 2/16AM, 21:11-24 (agreeing that “no deal is ever reached in that warehouse”); 37:2-3 (“deal hadn’t happened on the 8th”); 49:8-10 (no deal already in existence as of December 9, the day after the warehouse meeting). After leaving the warehouse, they went to get some food, but did not talk about a drug transaction. McCaffrey, 2/14PM, 103:15-104:4. Then Myrie had Thomas drive him back to his home in Tamarac (near Fort Lauderdale). Over the course of the next two days, Johnson tried to contact Myrie. Myrie refused to take Johnson’s calls. McCaffrey, 2/14PM, 97:1-4; Johnson, 2/16AM, 23:17-26:13; Myrie, 2/17 PM, 6:1-2. As Myrie stated, I was done with Mr. Johnson from when I was leaving out of Sarasota. From when we left that restaurant, I didn't want to have anything to do with this guy, because I felt like personally they could have told me -- at least told me that, hey, we're going to -- I'm taking you to this place, I'm going to show you couple ki's. Let me decide my fate, don't take away -what they did to me, they took away my chance to choose if I wanted to be a part of a drug deal or not, and they tricked me. In reality, that's what they did to me, and that's why I wasn't going to take his call. I wasn't going to take his call. Myrie, 2/16PM, 52:2-19.


With no deal reached with Myrie, Alex Johnson turns to Ian Thomas, who brokers a new deal with Ike and Tyke On December 9, unbeknownst to Myrie (Myrie, 2/17 PM, 11:1-9), Thomas and Johnson talked multiple times on the phone, and Thomas drove back to Sarasota so that Thomas and Johnson could work out a deal. Johnson, 2/16AM, 27:4-28:12. Thomas advised Johnson that the deal they had discussed at the warehouse wasn’t going to happen, and that he had contacts with a different group in Atlanta. Johnson, 2/16AM, 27:4-19, 37:6-8 (Thomas was changing the buyers). Thomas began

brokering a deal between Johnson and these Atlanta people, known as “Ike” and “Tyke.”13 Johnson, 2/16AM, 29:19-31:14. During this meeting, Johnson asked Thomas to call Myrie. When Johnson got on Thomas’s phone and tried to talk to Myrie, Myrie didn’t respond and got off the phone rapidly. McCaffrey, 2/14PM, 97:12-98:10; Myrie, 2/16PM, 53:1-5. Thomas then expressly told Johnson that Myrie was not involved: he “does not want to do nothing, man. Talk to me you know.

Myrie did not know “Ike” and “Tyke”, and the Government’s review of Myrie’s phone records reveal that there were no calls between Myrie and Ike or Tyke at any point in time. McCaffrey, 2/14PM, 71:15-72:3; Myrie, 2/16PM, 50:10-11. Neither Ike nor Tyke were charged in this case, after the conclusion of the trial Ike (whose real name real name is Isaac Camon) was charged in Case No. 8:11-CR-155 in the Middle District of Florida due, in part, to Ian Thomas’s cooperation against him. -18-


That’s not him you know? Music, eat, sleep, shit every day.” D. Ex. 19; Johnson, 2/16AM, 33:9-34:25 (emphasis added). By way of contrast, Thomas did want to do a deal, and for the first time, Johnson finally had hooked someone (though not the big fish he had been casting for). After much negotiating, they agreed to a five kilo deal with the new people from Atlanta (i.e., a different buyer and a different quantity than what Thomas and Johnson had discussed in Myrie’s presence the day before). Johnson, 2/16AM, 35:8-11, 37:210. Johnson told the agent that it was a “miracle” that a deal was going through. Johnson, 2/16AM, 36:17-37:1. The December 10 deal occurs without Myrie’s participation And on December 10, again without Myrie’s knowledge, Thomas drove back to the west coast. Thomas and Johnson went to the warehouse with James Mack, who had arrived from Georgia with the money from Ike and Tike. Johnson, 2/16AM, 37:23-38:9. Myrie not only did not know Mack (McCaffrey, 2/14PM, 69:1-3; AUSA Preston, 2/17 PM, 42:8-9), but he never heard Mack’s name until after he was arrested. Myrie, 2/16PM, 21:8-19. The deal that Thomas, Johnson and Mack did was an entirely different deal than the one that Johnson had previously discussed with Myrie, in which Johnson said he could give Myrie a “cut” of $5,000 on a 20 kilo deal.


Johnson, 2/15PM, 15:9-16:6, 2/16AM 37:2-13; see also AUSA Preston, 2/17 AM, 19:21-22. The recording of the events at the warehouse on December 10 revealed that the undercover agent who was present attempted to get Thomas to inculpate Mr. Myrie, asking Thomas, “Where is your friend?” (to which Johnson clarified that the man was referring to Myrie). McCaffrey, 2/14PM, 99:2-14. Thomas explained that Myrie wasn’t involved by gesturing to Mack and stating, “he’s the boss.” McCaffrey, 2/14PM, 99:2-100:4; Johnson, 2/16AM, 38:10-40:25. Immediately after exchanging the money, Mack and Thomas were arrested. Sergeant Eugene Halsey of the Sarasota Police Department, who was present at the scene, testified that a gun was seized from the car that Mack had been driving. The gun was secured in four layers; it was in a paper bag, in a ziploc bag, in a garbage bag, in a compartment of the car. Halsey, 2/16AM, 86:22-19. Myrie had no connection to the gun. Id. at 86:20-87:2.14 Agents seized approximately $135,810. McCaffrey, 2/14PM, 41:18-19. The Government acknowledges that none of this money came from Myrie. Id. at 41:20-22.

Not only did Myrie have no connection to Mack’s gun, but the case agent testified that the investigation never revealed Myrie to have been armed at any point. McCaffrey, 2/14PM, 47:10-12. -20-


Indeed, at the time, Myrie was across the state, asleep in his home in Tamarac. Myrie, 2/17 PM, 14:3-10. After the arrests (about which Myrie was unaware), Agent McCaffrey urged Johnson to call Myrie again. Johnson, 2/16AM, 41:5-10. Johnson called from the agent’s phone, which showed up “Private” on Myrie’s phone. Although he had refused to answer Johnson’s earlier calls, Myrie answered because the called ID said private. Myrie, 2/16PM, 56:15-57:6. Johnson encouraged Myrie to call Thomas to find out what happened. Myrie refused, stating “no, man, I’m resting,” and quickly terminated the call when he realized that it was Johnson. Johnson, 2/16AM, 41:8-43:22; McCaffrey, 2/14PM, 100:5-22. Myrie never called Thomas to follow up. McCaffrey, 2/14PM, 101:1-6; Myrie, 2/16PM, 57:13-14.15 Myrie knew nothing whatsoever about Thomas’s and Johnson’s plans for the drug transaction. Myrie, 2/17 PM, 11:1-7. While he had several conversations with Ian Thomas on December 9 and early on December 10, they were about unrelated subjects such as which repair shop Myrie’s car was located at and matters related to

At the very end of the second trial (but not the first), during the defense’s case and not its own case-in-chief, the Government asserted that Myrie placed one call to Johnson on December 10. Preston, 2/17 PM, 20:24-21:1. But Johnson did not testify that Myrie called him, only that he called Myrie. Johnson, 2/16AM, 43:1044:10. And the records on which the Government relied were “a mess”, according to the DEA’s intelligence research specialist who testified at the trial, and could not be used to demonstrate whether a call was incoming or outgoing. Godshall, 2/16AM, 67:25-78:18. -21-


Myrie’s upcoming foot surgery.16 Johnson, 2/16AM, 28:16-29:3, Myrie, 2/16PM, 53:14-54:4, 2/17 PM 10:22, 15:8-19. All of the calls were on Thomas’s regular phone, not his prepaid phone. McCaffrey, 2/14PM, 102:20-103:6. Myrie never spoke on the telephone with Thomas about drugs. Myrie, 2/17 PM, 25:20-22. As Johnson acknowledged both in his December 8 meeting with Thomas and at trial, it was Thomas, and not Myrie, who was the “broker” for the transaction. Johnson, 2/15PM, 24:8-21; Gov. Ex. R24b (after 1:05:00 restart) (Johnson: “Because you, you broke the deal.” Thomas: “Yeah. I put deals together, I’m the, I’m the middleman. I put ‘em together and make it happen.”). It was Thomas who brought in the buyers, negotiated the amount of cocaine to be purchased, and negotiated the price. Johnson, 2/15PM, 24:20-25:6. Thomas was to earn $10,000. Johnson, 2/15PM, 25:10-26:2. Myrie, in contrast, did not earn any money out of the deal, nor did he expect to do so. Johnson, 2/15PM, 26:17-19; McCaffrey, 2/14PM, 73:16-17; Myrie, 2/17 PM, 16-19. Even the Government admits that Myrie “ultimately didn’t finance anything. He invested no money in this case and he paid nothing.” Preston, 2/14PM, 11:9-12; see also McCaffrey, 2/14PM, 71:3-5; Johnson, 2/15AM, 58:17-19.

The Government’s investigation revealed that Myrie and Thomas spoke “all the time.” McCaffrey, 2/14PM, 76:13-18; see also Myrie, 2/16PM, 54:5-10. -22-


Yet despite Myrie’s lack of knowledge of, or participation in, this drug transaction, Myrie, 2/16PM, 58:13-21, agents came to his home in Tamarac and arrested him shortly after Thomas and Mack were arrested in Sarasota. McAffrey, 2/14PM, 39:5-6. In the end, Johnson got the payday he was hoping for. Although he normally “earned” 15-20% for his work as an informant, in this case he received more than $50,000, 40% of the $135,000 that was seized. McCaffrey, 2/14PM, 41:12-19, 84:1019; Johnson, 2/15PM, 29:11-21. He got to keep his million dollar home and fancy car, and continue without paying his taxes to the United States. Initial Charges Myrie, Thomas and Mack were indicted on December 15, 2009. DE11. Count One charged them with knowingly and willfully conspiring with each other and others to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and § 846. Count Two charged them with aiding and abetting each other in knowingly and intentionally possessing a firearm in furtherance of, and carrying a firearm during the course of, a drug trafficking crime in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. Myrie made his initial appearance in the Middle District of Florida on January 7, 2010. DE32. -23-

Trial Is Repeatedly Delayed Trial initially was set for March 1, 2010. DE35. No motions were pending for 19 days after indictment until, on January 26, 2010, Myrie’s counsel filed a motion to disclose the identity of the confidential informant and a motion to compel discovery. DE38, DE40. On February 3, 2010, the defense moved to continue the trial. Because of other scheduling conflicts including the expected birth of the case agent’s child, Myrie requested a special setting of April 12, 2010. DE41. On February 16, 2010, the Court granted the motion and set the trial to begin on April 19, 2010. DE45. On March 4, 2010, Magistrate Judge Wilson conducted a hearing and decided the defense motions to compel and to discover the identity of the confidential informant. DE55. On March 21, 2010, Myrie filed a motion for bond. DE57. The Court conducted a hearing on March 26, 2010, and denied the motion from the bench. DE60. On March 29, 2010, Myrie filed a motion to compel, which was denied on April 29, 2010. DE77. On April 8, 2010, just 11 days before the scheduled trial date of April 19 and with no motions pending, the Court sua sponte postponed trial until June 21, 2010 (a delay of 74 days), without stating any reason for the delay. DE68. That same day, on April 8, 2010, Myrie objected to the postponement and requested a status conference. -24-

DE69. The motion for status conference advised the Court not only that Myrie was in custody, but also that the defense had witnesses traveling to Tampa from outside the United States and attorneys traveling from out of state for the trial. The motion suggested that the trial could be transferred to another judge if the court had a scheduling issue. Not only were Myrie’s requests denied, DE70, but on May 28, the court again continued the trial sua sponte, this time extending it from June 21 until the September trial calendar (making this single delay more than 70 days in and of itself), again without explanation. DE82 and 83. Myrie immediately objected, moved to dismiss, and filed a speedy trial demand. DE84. To the extent that the reason for continuance related to a co-defendant, Myrie requested severance. On June 1, the district court denied the motion to dismiss for violation of the Speedy Trial Act. DE86. The district court stated that “[o]ne of the reasons supporting a continuance is the claim of the government that one of the co-Defendants has counsel of record with a conflict of interest,” and set a conflict hearing for August 4. Id. at 2. The district court did not explain, however, why this issue could not be addressed more expeditiously nor did he address Myrie’s request for a severance. After all that, the codefendants pled guilty and did not participate in the trial (either as defendants or as witnesses). Thomas was sentenced to 51 months on Count -25-

One, and Count Two was dismissed. DE 305. After the Government moved to give Mack a 4-level reduction in his offense level pursuant to USSG §5K1.1 (as a result of his cooperation against individuals in Georgia), he was sentenced to 135 months (75 months on Count One and Sixty Months on Count Two, to run consecutively). First Trial On September 20, 2010, trial finally began and proceeded for several days. At the close of the government’s case, Myrie moved for a judgment of acquittal, arguing among other things that the government had not proven the aiding and abetting gun charge in Count Two. The Court reserved ruling on the motion. After two days of deliberation, the jury announced that they were deadlocked and the district judge gave an Allen charge. The jury, split 7-5 for acquittal, still was unable to reach a verdict, and the district judge declared a mistrial. DE157. Following the verdict, Myrie filed a renewed motion for judgment of acquittal on Count 2. DE186. Subsequently, Myrie was released on bond. Superseding Indictment Following Myrie’s release, the Government obtained a superseding indictment, adding two new counts and modifying the gun count. DE191. Count One, as before, charged Myrie with knowingly and willfully conspiring with others to possess with -26-

intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and § 846. Count Two, a new count, charged Myrie with knowingly and willfully attempting to possess with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and § 846. Count Three charged Myrie with knowingly and intentionally possessing a firearm in furtherance of, and carrying a firearm during the course of, a drug trafficking crime in violation of 18 U.S.C. § 924(c). And Count Four charged Myrie with knowingly and intentionally aiding and abetting others, known and unknown, in using a communication facility, namely a telephone, in facilitating the commission of the conspiracy to possess, and attempt to possess, cocaine with the attempt to distribute, in violation of 21 U.S.C. § 843(b). Myrie filed a motion to dismiss the superseding indictment on the basis that Counts 1, 2, and 4 were multiplicitous and Count 3 violated double jeopardy. DE198. The district judge denied the motion. In addition, Myrie filed a motion to dismiss the superseding indictment for vindictiveness, asserting that the basis for the new charges was known to the government before the first trial, and that the government’s rationale for superseding was to penalize Myrie for exercising his constitutional right to go to trial (and come close to winning). DE220. The district judge denied the motion without hearing. DE232. -27-

Second Trial On February 14, 2011, the retrial commenced. Along with Alex Johnson, the government called Special Agent Daniel McAffrey, DEA Intelligence Research Specialist Bonnie Godshall, and Eugene Halsey of the Sarasota Police Department. The government did not call the supposed co-conspirators, Ian Thomas17 or James Mack, nor did they call Ike or Tyke. Because Mack had invoked his Fifth Amendment privilege, the district court did not permit Myrie to call him despite Myrie’s assertion that the invocation of privilege was improper. 2/17AM 50:1-25 (preserving objection made at Tr.1, Vol. III, 9/22/10, at 5-10). Neither was the defense permitted to introduce Mack’s sworn affidavit, exculpating Mr. Myrie and attesting to the fact that he had never spoken to, met, or heard of Myrie before, because the Court had excluded it on hearsay grounds. 2/17AM 50:1-25 (preserving objection made at Tr.1, Vol. III, 9/22/10, at 10-12). The defense called Myrie and three character witnesses (filmmaker Stephanie Black, and fellow reggae musicians Gramps Morgan and Stephen Marley, son of Bob

Although Thomas cooperated with the government on this case and on others, the government did not call him as a witness at trial, no doubt because he would have exculpated Myrie. Both sides agree that Thomas was the broker of the drug deal in this case between Johnson (the undercover seller) and Ike & Tyke (the buyers). See, e.g., Johnson, 2/15PM, 24:8-25:9 -28-


Marley). Each of them testified that Myrie was an honest and law-abiding person, and was not a drug trafficker. Black, 2/16AM, 93:11-94:12; Morgan, 2/16PM, 5:24-6:25; Marley, 2/16PM, 13:20-14:3. Morgan, Myrie’s best friend, testified that Myrie is honest and law-abiding, and “definitely not” a drug trafficker as that would be “totally against our faith.” Morgan, 2/16PM, 5:24-6:25. He added that Myrie had the reputation as “one of the hardest working musicians in reggae music.” Morgan, 2/16PM, 10:10-11. Marley, who has known Myrie for 19 years and describes him “like a brother,” put up his own house as collateral for Myrie’s bond. Marley, 2/16PM, 12:15-17, 14:11-20. Marley described Myrie as a very giving and spiritual person. Marley, 2/16PM, 13:-18-14:3. All three witnesses also concurred that Myrie was “a big talker,” often boasting and trying to outdo what someone else was saying. Black, 2/16AM, 93:18-21, 95:1-6; Morgan, 2/16PM, 10:14-22; Marley, 2/16PM, 13:9-17. In an effort to avoid its lack of success at the first trial, the government waited until the very end of the trial to throw in a new (and unsupported) argument. Although there was no basis in the evidence for this contention, the government asserted in its rebuttal closing that Myrie placed a call to Alex Johnson on December 10. Preston, 2/17 PM, 96:19-97:4. The government did not seek or present any evidence of this during its case-in-chief or mention it in opening statement. Its summary witness on the telephone calls, Bonnie Godshall (an “intelligence research specialist”) testified -29-

that it was impossible to tell from the phone records whether the calls were incoming or outgoing because the records were “a mess.” Godshall, 2/16AM, 67:25-78:18. The government did not make this argument in the first trial. It did not ask Godshall whether she could tell if Myrie made a call to Johnson on December 10 in either trial. Neither did it ask Johnson or McAffrey if Johnson had received a call from Myrie in either trial. Instead, it waited until cross-examination of Myrie, the last witness, to raise this issue.18 The government then deferred until its rebuttal closing to argue that Myrie called Johnson on December 10. Preston, 2/17 PM, 96:19-97:4. The defense timely objected, arguing that, “There’s no evidence of that. In fact, the witness testified she could not tell from looking at the records which was incoming or outgoing.” Id. at 97:8-11. The prosecutor responded that “[t]here’s a reason for the inference in this case.” Id. The district judge told the prosecutor to make sure he explained that to the jury, and the prosecutor argued that “based on what we see here, ... it’s a reasonable inference from the evidence that the phone company has a separate way of recording incoming and outgoing phone calls,” id., and that the jury could infer that Myrie was the one who called Johnson. Myrie preserved his objection (and subsequently filed a motion for new trial on this issue). Myrie testified that he “might have” called Johnson, if that was what the records showed, Myrie, 2/17PM, 20:24-22:3, but, of course, the records did not show that. -3018

The Verdict The jury acquitted Myrie of Count Two, the substantive cocaine count. However, the jury convicted Myrie of Count One (Conspiracy to Possess with Intent to Distribute), Count Three (the gun count) and Count Four (Use of a Telephone to Facilitate Controlled Substance Offenses). DE280. Rule 29 and Post-Trial Motions Myrie timely raised his motion for judgment of acquittal at the close of the government’s case, 2/16AM, 95:16-100:23, and at the close of the case, 2/18 3:6-9. Post-trial, he renewed his motions for judgment of acquittal and a new trial. DE 289. The district court agreed in part, and entered Judgment of Acquittal on Count Three (the gun count). DE318. Sentencing Hearing On June 23, 2011, the district court sentenced Myrie to 121 months of incarceration on Count One and 48 months of incarceration on Count Four, to run concurrently, followed by five years supervised release, and a $200 assessment. DE319.


STANDARD OF REVIEW This Court reviews the jury’s verdict de novo to “determine whether, in the light most favorable to the government, a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt,” drawing all reasonable inferences from the evidence in favor of the jury's verdict. United States v. Kelly, 749 F.2d 1541, 1545-6 (11th Cir. 1985). Where entrapment is raised on appeal, this Court’s review is de novo with all facts viewed in the light most favorable to the government. United States v. Brown, 43 F.3d 618 (11th Cir. 1995). This Court reviews de novo the district court’s construction and interpretation of the Speedy Trial Act. United States v. Williams, 314 F.3d 552, 556 (11th Cir. 2002). The district court’s factual determinations regarding excludable time are reviewed for clear error. Id.


SUMMARY OF THE ARGUMENT 1. Myrie is not guilty of the two counts subject to review herein. With

regard to his conviction for conspiracy to distribute cocaine, the undisputed evidence is that there was no agreement and therefore no conspiracy as of the time that Myrie left the warehouse at which Johnson surprised him with drugs on December 8, and there were no subsequent communications between Myrie and anyone else regarding participating in a drug conspiracy. Accordingly, Myrie simply cannot be held to have participated in the drug conspiracy that went forward without his involvement. And with regard to his conviction for aiding and abetting the use of a telephone in facilitating a drug conspiracy, the district court erred in letting Myrie’s conviction stand because Myrie is not guilty as a matter of law pursuant to this Court’s holding in United States v. Rivera, 775 F.2d 1559 (11th Cir. 1985). Taking the evidence in the light most favorable to the government, Myrie did not aid and abet Thomas in facilitating the September 10 drug deal (which was not even the deal that was under discussion while Myrie was present). 2. The district court erred in failing to find that Myrie was entrapped as a

matter of law, as Myrie (a successful law-abiding individual with no previous record) was not predisposed to participate in a cocaine conspiracy and his involvement was the result of improper government inducement. The government’s informant (a -33-

convicted drug dealer with substantial financial problems) pursued a lengthy, intense, unrelenting campaign to target Myrie, culminating in a surprise visit without Myrie’s assent to a warehouse where drugs were present. Each of the five factors considered by this Court compel a finding of entrapment, most notably Myrie’s demonstrated reluctance to participate in a drug conspiracy and his consistent efforts to avoid following up on Johnson’s consistent and emphatic efforts to draw Myrie in. 3. Because the speedy trial clock ran long before Myrie was tried, the case

should have been dismissed with prejudice. Setting aside excludable days, the 70 day clock expired in this case 93 days before Myrie was initially tried, more than double the amount of time permitted by the Speedy Trial Act.



Because the Government failed to establish that Myrie was a part of the drug conspiracy, his conviction must be overturned. The Government’s case was built on Myrie’s conversations with informant Alexander Johnson and his actions at the surprise warehouse visit on December 8. As Alexander Johnson acknowledged at least three separate times during his testimony, however, there was no conspiracy as of the time Myrie left the warehouse and went home on December 8. Johnson, 2/16AM, 21:11-24, 37:2-3, 49:8-10. And there is no evidence (indeed, not even an allegation) that Myrie participated in any conversation about doing a deal after that. Because Myrie did not agree to participate in the only drug conspiracy that was ever reached (the conspiracy leading to the December 10, 2009 warehouse arrests), his conviction on Count One must be reversed as a matter of law. United States v. Fernandez, 797 F.2d 943, 948-9 (11th Cir. 1986). On a conspiracy count, the government must present “substantial evidence” of guilt. United States v. Russo, 796 F.2d 1443, 1455 (11th Cir.1986) (“[T]he question -35-

is whether there is substantial evidence to support the verdicts.”); United States v. Toler, 144 F.3d 1423, 1427-28 (11th Cir. 1998). Yet not only did the government fail to present substantial evidence that Myrie entered into an agreement with anyone to participate in the drug conspiracy that was hatched by others on December 9 and 10 (the only conspiracy that existed), but the government failed to present any evidence that Myrie was involved. The Government’s principal witness clearly stated that no conspiracy existed as of the time that Myrie ceased any further communication with Johnson and any drug-related communication with Thomas. Alexander Johnson testified repeatedly that no deal was reached on December 8 (when Mr. Myrie was present): Q. A. Because the deal hadn’t happened on the 8th, right? No.

Johnson, 2/16AM, 37:2-3 (emphasis added); see also 21:11-24 (agreeing that “no deal is ever reached in that warehouse”); 49:8-10 (no deal already in existence as of December 9, the day after the warehouse meeting). Johnson, Thomas, and Myrie did not discuss a drug transaction at the restaurant they visited after the warehouse. McAffrey, 2/14PM, 104:1-4. And there was no evidence or suggestion that Johnson ever discussed a drug transaction with Myrie at any point thereafter. See McAffrey, 2/14PM, 97:15-23. -36-

After the surprise flash of cocaine on December 8, Ian Thomas began to broker a deal between Johnson and different potential buyers. But this deal changed many times over the course of the next two days. Johnson stated that it was “a miracle” that he subsequently was able to reach a deal with Thomas on December 9 and 10. Johnson, 2/16AM, 36:17-37:1. Johnson explained that until then, “everything was up in the air” and that “things kept changing.” Id. at 37:2-16. Johnson said he finally “made it happen with Ian Thomas.” Id. at 37:17-18. There is no evidence whatsoever that Myrie knew of or became a willful participant in this conspiracy between Johnson, Thomas, Mack, and the Atlanta suppliers.19 This was an entirely different conspiracy than any in which Myrie arguably could even be accused of having previously discussed. Other than the fact

The only communication Myrie had with any participant was a few telephone calls with Thomas. However, the undisputed evidence was that Myrie routinely spoke with Thomas, McAffrey, 2/14PM 76 13-18 (they spoke “all the time”); Johnson, 2/16AM, 28:16-29:3, and that these specific calls were related to Myrie’s upcoming surgery and repairs being done on his truck. Johnson, 2/16AM 42:24-43:6; Myrie, 2/16PM, 53:14-54:10. Moreover, the calls were on Thomas’s regular phone, not the phone Thomas used to discuss drug transactions. McAffrey, 2/14PM, 102:20103:10. The Government chose not to call Thomas to testify, perhaps because he had advised the Government that none of his December 9 and 10 calls with Myrie were drug-related. DE 289. As the Eleventh Circuit has held, association with a conspirator is insufficient to convict a person of being a member of the conspiracy. United States v. Newton, 44 F.3d 913 (11th Cir. 1994). Rather, the defendant must, in some manner, willfully associate himself in some way with the criminal venture and willfully participate in it as he would in something he wished to bring about. Id. -37-


that it involved the same seller (informant Johnson who Myrie cannot have conspired with as a matter of law,)20 literally every aspect of it was different. It involved different buyers, a different broker (Thomas),21 a different quantity, and a different price than what Johnson and Myrie had “vaguely” discussed (on Johnson’s repeated and exclusive initiative). Johnson, 2/15AM, 58:13-16, 73:9-12; Johnson, 2/16AM, 27:4-19 29:22-30:3, 37:6-8; McCaffrey, 2/14PM, 43:1-5; 80:16-24; Gov. Ex. R15b. In fact, not only was there no evidence that Myrie assented to participate in a drug conspiracy after the surprise flash, but there is substantial evidence that Myrie affirmatively declined to participate. Over the course of the next two days, Johnson tried to contact Myrie four different times. Myrie refused to take Johnson’s calls when he could tell that it was Johnson calling, and when Johnson used different phones to

It is well-settled law that one cannot conspire with a government agent like Johnson. United States v. Arbane, 446 F.3d 1123 (11th Cir. 2006); United States v. Wright, 63 F.3d 1067 (11th Cir. 1995). Without a conspiracy with Johnson, the government is left to saying that Myrie conspired with Mack (which is impossible because they never met or spoke or heard of each other before) or Ian Thomas (who did not testify and who cooperated with the government, earning a 5K1.1 for truthfulness including telling them that Myrie was not involved). The fact that Myrie introduced Thomas to Johnson is of no moment. See United States v. Fernandez, 797 F.2d 943, 948-9 (11th Cir. 1986). As Johnson conceded, there is a difference between introducing people and being a broker to a deal. Johnson, 2/15PM, 24:17-19. According to Johnson, it was Thomas and not Myrie who was the broker, and it was Thomas and not Myrie who was to make money from the deal. Johnson, 2/15PM, 24:20-26:19; Gov. Ex. R24b. -3821


call Myrie, he immediately blew Johnson off and hung up. McCaffrey, 2/14PM, 97:14; Johnson, 2/16AM, 23:17-26:13; Myrie, 2/17 PM, 6:1-2. Left with no other argument, the government asserted that Myrie was the “second broker” in the deal because he introduced Thomas (the actual broker) to Johnson. The government’s theory that Myrie is guilty of a conspiracy about which he knew nothing, merely because he introduced Thomas to Johnson, is untenable as a matter of law. A case that presents strikingly similar facts is United States v. Fernandez, 797 F.2d 943 (11th Cir. 1986). In that case, which reversed a drug conspiracy conviction, the defendant introduced a co-conspirator to a pilot who had discussed a drug importation venture. The court held that this did not amount to agreeing to participate in the conspiracy. Id. at 948. The unrefuted evidence is that Myrie had no knowledge of any aspect whatsoever of this conspiracy. Myrie, 2/16PM, 52:2-53:5, 58:9-21. He was across the state when the discussions and transaction took place. Johnson, 2/16AM, 28:10-12. He did not know or speak to the buyers; indeed, he never even heard their names. McAffrey, 2/14PM, 71:15-17; Sworn Statement of James Mack, D.E. 105, 107; Myrie, 2/16PM, 21:8-19, 50:10-11. When a government agent asked about Myrie in order to implicate him, Thomas said that Mack (and not Myrie) was “the boss.” Johnson, 2/16AM, 38:10-40:25. Myrie invested nothing, paid nothing, and earned nothing from -39-

the transaction. McAffrey, 2/14PM, 41:20-22, 71:3-5, 73:16-18; Johnson, 2/15AM, 58:17-19; Preston Opening, 2/14PM, 11:9-12. And when Johnson tried to get Myrie on the phone to talk about a deal and Myrie declined to talk to him, Thomas said that “Myrie does not want to do nothing.” Johnson, 2/16AM, 33:10-34:25. As Johnson conceded, “no means no.” Johnson, 2/16AM, 44:7-8. Given that there was no conspiracy as of the time Myrie left the warehouse on December 8, Johnson, 2/16AM, 21:11-24, 37:2-3, 49:8-10, and nothing occurred to create a conspiracy involving Myrie thereafter (to the contrary, Myrie repeatedly manifested his intention not to be involved and Thomas underscored Myrie’s lack of interest), Myrie’s conviction for participation in a drug conspiracy simply cannot stand. “The essential element in a prosecution for such conspiracies is an agreement between two or more persons to violate narcotics laws.” United States v. Fernandez, 797 F.2d 943, 948-9 (11th Cir. 1986) (emphasis in original). It is impossible for Myrie to have agreed to participate in a conspiracy that he knew nothing about and had never discussed. It is worth emphasizing that Myrie did not agree to participate in a conspiracy prior to or during the December 8 warehouse visit either, as Johnson admitted. It is undisputed that Myrie did not knowingly or willingly visit the warehouse to see cocaine. Johnson, 2/15PM, 96:1-13; McAffrey 2/14PM, 89:3-90:3, 94:1-4. Johnson -40-

used the ruse of telling Myrie that they were going to party on a boat and had to stop by Johnson’s office to pick up the key. Myrie was never given the choice of whether he wanted to see cocaine, and never agreed to go forward with a deal. Even if it were voluntary, Myrie’s presence at the warehouse is insufficient to sustain a conviction.22 The Eleventh Circuit consistently has held that mere presence is insufficient. See, e.g., United States v. Stanley, 24 F.3d 1314 (11th Cir. 1994); United States v. Jenkins, 779 F.2d 606 (11th Cir. 1986); see also United States v. Villegas, 911 F.2d 623 (11th Cir.1990) (holding that the defendant's looking left and right in the vicinity of the defendant's brother's cocaine deal was not sufficient to show participation in the conspiracy). In United States v. Kelly, 749 F.2d 1541 (11th Cir. 1985), the Eleventh Circuit reversed a defendant's conviction for conspiracy to possess drugs with intent to distribute. The Court held that the defendant’s acquaintance with other participants in the conspiracy, his presence after the inspection of the boat to be used in the drug transaction, and his presence during the drug bust were “insufficient to support a conclusion of conspiratorial intent.” Id. at 1548. The Court pointed out that, unlike the other defendants, this defendant did not use code language and was not connected

The Government’s failure to arrest Myrie at the warehouse on December 8, 2010, underscores that no conspiracy existed as of that point in time. -41-


to the instrumentalities of the distribution and importation scheme. Id. This is much like Myrie, who (unlike the other defendants) did not use a different phone when speaking to the participants, never spoke in code, and had no role in the conspiracy. See, e.g., Johnson, 2/16AM, 25:20-22, The “very general and very vague” conversations from previous days, McCaffrey, 2/14PM, 43:1-5, 80:16-24, also cannot support a conspiracy conviction. See United States v. Fernandez, 797 F.2d 943, 948-49 (11th Cir. 1986) (even in a drug conspiracy, assent to object of conspiracy requires more than mere vague language); United States v. Young, 39 F.3d 1561, 1565-66 (11th Cir. 1994) (speculation as to interpretation of words used by defendant drug seller – which may or may not have had a coded meaning relating to a drug supplier – insufficient to prove drug conspiracy); United States v. Gonzalez, 183 F.3d 1315, 1324-25 (11th Cir. 1999). Accordingly, the drug conspiracy conviction should be reversed. B. Myrie Did Not Aid And Abet Others In Using A Telephone To Facilitate A Drug Conspiracy.

Myrie’s conviction on Count Four, for aiding and abetting others in using a telephone in facilitating a drug conspiracy, also cannot be sustained. The

government’s theory was that on December 8 in the warehouse, Myrie aided and


abetted Thomas’ use of the telephone while Thomas spoke with potential buyers. See 21 U.S.C. 843(b).23 This theory fails as a matter of law. In order “[t]o sustain a conviction under an aiding and abetting theory, the prosecution must show that the defendant associated himself with a criminal venture, participated in it as something he wished to bring about, and sought by his actions to make it succeed.” United States v. Pantoja-Soto, 739 F.2d 1520, 1525 (11th Cir. 1984); see also United States v. Lozano-Hernandez, 89 F.3d 785, 790 (11th Cir. 1996). The government did not introduce any evidence that Myrie did any of these things in conjunction with Thomas’ use of a telephone to facilitate a drug conspiracy. Myrie, who was at the warehouse against his will and without his knowledge, had no role in Thomas’ decision to make the December 8 phone call, barely participated in it at all, and did not seek to make it succeed. In United States v. Rivera, 775 F.2d 1559 (11th Cir. 1985), the Eleventh Circuit held that: In order to prove a violation of 21 U.S.C. 843(b), the government must establish that the defendant knowing and intentionally used a ... telephone to facilitate the commission of a narcotics offense. In order to Oddly, Myrie was charged with aiding and abetting Thomas’ use of the telephone to facilitate a narcotics offense, but Thomas himself was not charged with using the telephone to facilitate a narcotics offense. This demonstrates that the government tried to add as many charges as it could after the hung jury (7-5 for acquittal) to see what it could get to stick. -4323

establish the facilitation element, the government must show that the telephone call comes within the common meaning of facilitate – ‘to make easier’ or less difficult, or to assist or aid. Id. at 1562 (internal citations omitted). The Rivera defendant asked specific questions to a co-conspirator: “how are we doing with sales, and where is the money?” But the Eleventh Circuit found that this was “not proof of facilitation.” Id. Here, the government hangs its hat on Myrie’s awareness that Thomas was on the phone with potential buyers (obviously insufficient) and on Myrie’s statement to Thomas “yo, ask him how much he wants.” DE 295 at 4; DE 315, 6/23 Sentencing Transcript. This is far less incriminating than the calls in Rivera. As the Eleventh Circuit has stated, “communications [that are] an attempt to find out how the deal was progressing” do not constitute facilitation under the statute. Id. at 1563. And significantly, Thomas did not even repeat Myrie’s question on the telephone. Instead, Johnson told Myrie that they were discussing 30 kilograms. Gov. Ex. R23b. Moreover, the deal Thomas was pushing for in Myrie’s presence (30 kilos) was not consummated. Accordingly, Myrie’s comment to Thomas on December 8 (which was not repeated) cannot possibly have aided or abetted the facilitation of the December 10 deal.




abiding and productive member of society into a drug dealer constitutes entrapment that requires dismissal of the case against Myrie. Without Johnson’s unrelenting pressure in this case, Mark Myrie never would have been involved. The law on entrapment is clear: a defendant is entrapped when a government agent (like Johnson), induces or persuades a defendant (the inducement prong) to commit a crime that the defendant had no previous intent to commit (the predisposition prong). United States v. Brown, 43 F.3d 618 (11th Cir. 1995). Courts consider a defendant’s reluctance to act on repeated government suggestion. United States v. Pillado, 656 F.3d 754, 766 (7th Cir. 2001). Though Myrie repeatedly said “No,” Johnson continued to employ techniques that no society based on law should tolerate – he got Myrie drunk before bringing up deals; he used Myrie’s sense of family; he promised Myrie that he could help advance his career; and by his own admission he would not stop no matter how many times Myrie rebuffed him. Indeed, Johnson went so far as to believe it was his “job” to pursue Myrie until Myrie gave in.


On appeal, this Court’s review is limited to whether the defendant was predisposed to take part in the illicit transaction. If the defendant was not predisposed, the conviction must be reversed. United States v. Padron, 527 F.3d 1156, 1159 (11th Cir. 2008). The Court must “consider[] the purpose of the doctrine of entrapment. It is to prevent the police from turning a law-abiding person into a criminal. Thus, when the entrapment defense is in play, predisposition must be the key inquiry.” Pillado, 656 F.3d at 764 (internal quotation omitted). Given the absence of any evidence that Myrie was predisposed to engage in the charged misconduct, the district court erred in failing to dismiss the case. As the Supreme Court has made clear, Law enforcement officials go too far when they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute. . . . When the Government’s quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene. Jacobson v. United States, 503 U.S. 540, 553-54 (1992) (internal quotations omitted) (emphasis added). Without question, Myrie is the paradigmatic example of an individual who, left to his own devices, would never have run afoul of the law. In Jacobson, the Supreme Court reversed a child pornography conviction on the basis that the government failed to establish that the defendant was disposed to commit the crime prior to being approached by government agents. Id. at 549. The


Supreme Court pointed to the fact that the defendant had not committed any similar crime before the initial government contact, and emphasized the significance of the government’s lengthy campaign of repeated communications which finally motivated the defendant to act. As the Court stated, “although [the defendant] had become predisposed to break the law [by the time he did so], it is our view that the government did not prove that this predisposition was independent and not the product of the attention that the government had directed at petitioner . . .” Id. at 550. See also Sherman v. United States, 356 U.S. 369 (1958) (finding entrapment defense as a matter of law where the defendant’s actions were brought about by the informer’s persistent solicitations, and where there was no evidence that the defendant made a profit; rejecting claim that two previous drug convictions established predisposition). Similarly, in this case, the government failed to offer any evidence that Myrie was predisposed to engage in the charged offenses. To the contrary, the government’s own evidence and witnesses established that Myrie was pushed again and again by Alexander Johnson, a so-called government “informant”,24 who was acting on his own

The Macmillan Dictionary defines an “informant” as “someone who secretly gives information about someone to the police or someone in authority.” As applied to this case, the term is a misnomer. Johnson did not give “information” to the authorities; instead he created the “information” through a lengthy campaign against a well-regarded, law abiding individual. -47-


initiative and without any reason to target Myrie, even after Myrie repeatedly said no. McCaffrey, 2/14PM, 40:7-11; AUSA Preston, 2/14PM, 8:15-18. This Court has explained that whether a defendant was predisposed to the crime charged requires an evaluation of the following five factors: (1) the defendant's character or reputation; (2) whether the government initially suggested the criminal activity; (3) whether the defendant engaged in the criminal activity for profit; (4) whether the defendant evidenced a reluctance to commit the offense that was overcome by government persuasion; and (5) the nature of the inducement or persuasion by the government. No single factor controls, but the most important is whether the defendant was reluctant to commit the offense. Pillado, 656 F.3d at 766. These factors each weigh strongly in favor of a finding of entrapment. First, the uncontested evidence is that Myrie, who has no prior convictions, is an honest individual of good character, and is not a drug trafficker. Black, 2/16AM, 93:1194:12; Morgan, 2/16PM, 5:24-6:25; Marley, 2/16PM, 13:20-14:3. He is hardworking, and gives back substantially to the people of Jamaica. Black, 2/16AM, 90:13-93:10; Morgan, 2/16PM, 5:24-6:25; Marley, 2/16PM, 13:20-14:3. Dozens of people wrote to the District Court in support of Myrie, each attesting to Myrie’s good reputation and history of good deeds. DE311, 312.


Second, it was the government (through Johnson) which initially suggested the criminal activity, and which repeatedly initiated discussion of a potential drug transaction every time Johnson and Myrie got together. Johnson contacted Myrie innumerable times over a 6 month period, reinitiating contact over and over on at least 15 different occasions. During their communications, it was always Johnson – never Myrie – who initiated conversations about doing a drug deal. McAffrey, 2/14PM, 92:15-23. Johnson also testified that he would not ever have stopped pursuing Myrie unless he was told to do so by the authorities (which could never have happened as he was acting independently and without supervision). Johnson, 2/15PM, 89:7-17, 98:14-23. Indeed, although he admitted that “no means no,” Johnson, 2/16AM, 44:710, Johnson did not give up even after both Myrie repeatedly refused offers to get together and repeatedly cancelled those plans to which he initially agreed. Johnson, 2/15PM, 87:7-89:11, 89:18-94:8; Gov. Ex. R5b-R9b. Third, Myrie did not engage in the criminal activity for profit, as there is no evidence whatsoever that Myrie was to receive any compensation for the deal. Johnson, 2/15PM, 26:17-19; McCaffrey, 2/14PM, 73:16-17; Myrie, 2/17PM, 16-19. If anything, taking as true the government’s theory that Myrie participated in the conspiracy by being the “broker of the broker,” Myrie’s motivation was to put Thomas in so that he himself could get out. It was not to earn a profit. -49-

Fourth, Myrie repeatedly evidenced a reluctance to commit the offense, as manifested by the facts that he was never the one to initiate a discussion about a drug transaction, that he repeatedly cancelled or refused efforts to meet, that he withdrew from the discussion at the warehouse on December 8 when Johnson brought him without his knowledge to see the drugs, and that he declined four separate efforts from Johnson to speak thereafter. Instead of sitting back and waiting to see if Myrie would return his calls, Johnson called and texted again, repeatedly, until he succeeded in getting through to Myrie. Myrie also was reluctant to come to Sarasota, and Johnson eventually succeeded in getting him there only by tricking him into thinking they were meeting in Naples for a social visit. Finally, because of Myrie’s reluctance in going beyond boastful talk about a drug transaction, Johnson got him to come to the warehouse only by lying about where they were going. Myrie never was given the opportunity to decline such a visit. Indeed, the fact that government chose to set Myrie up with a surprise flash demonstrates the government’s clear awareness of Myrie’s reluctance to participate. As to the fifth factor, the nature of the inducement or persuasion by the government, Johnson sought to use every aspect of Myrie’s life to persuade him to trust him and to participate. Johnson testified that he waited to bring up the subject of drugs until after Myrie had a significant amount to drink, because it was part of the -50-

“game” he was playing. Johnson, 2/15PM, 63:16-20. He also falsely suggested that he could be of substantial assistance to Myrie’s career and a help to his family. See, e.g., Johnson, 2/15PM, 76, 81. And he pretended to be receptive to Myrie’s suggestions that they engage in legitimate businesses (though he never followed up). See, e.g., Myrie, 2/16PM, 80:14-20. Significantly, Johnson did not believe Myrie was a real drug trafficker and instead believed that Myrie was just “talking.” Johnson, 2/15PM, 71:1-8, 72:13-18, 73:4-12.25 Yet he continued to pursue him relentlessly. Of course, Johnson’s motivation was simple – money. Though he had made more than $3.3 million as an “informant” over the course of his career (after serving just two and a half years of a 21 ½ year sentence), Johnson was broke and needed income. Johnson, 2/15PM, 27:816, 30:22-32:7, 43:22-44:6. And his diligence paid off; as a reward for his efforts to create a drug dealer out of a Grammy-winning recording artist, Johnson earned more than $50,000 (40% of the amount seized from others). McCaffrey, 2/14PM, 41:12-19, 84:10-19; Johnson, 2/15PM, 29:11-21. This case is strikingly similar to United States v. Odeesh, 937 F. Supp. 637 (E.D. Mich. 1996), in which the court granted a judgment of acquittal after a trial. The The government has conceded that, despite undoubtedly valiant efforts, it has been unable to find any evidence that Myrie engaged in any other drug transaction at any time. McCaffrey, 2/14PM, 78:21-79:1, 80:16-24. -5125

court found that the absence of prior criminal activity on the part of the defendant, and the fact that the deal was proposed first by a government agent who then peppered him with requests for drugs over a six month period, were both relevant to a finding of lack of predisposition. Id. at 640. The court also pointed to the fact that until he finally relented, the defendant was “never ready to do the ‘deal’ today, always tomorrow or at some later time.” Id. As in Odeesh, Mr. Myrie was “naive and demonstrated a misguided sense of loyalty to a friend, or potential friend, but his character, reputation, lack of prior criminal involvement and obvious reluctance to comply with the government agent’s repeated requests for cocaine support the court’s conclusion that [the defendant] was not predisposed to the criminal activity before his initial contact with the government’s agent.” Id. at 641.26 This constitutes precisely the sort of evidence that establishes a lack of predisposition, especially in light of the lack of evidence to the contrary. See also United States v. Poehlman, 217 F.3d 692, 705 (9th Cir. 2000) (reversing conviction because defendant was entrapped in the absence of evidence that he was predisposed: “There is surely enough real crime in our society that it is unnecessary The Fifth Circuit utilized these factors in United States v. Bradfield, 113 F.3d 515 (5th Cir. 1997), referencing as relevant to the predisposition element the fact that the reverse-sting operation was the paid informant’s idea, that the informant made “innumerable” telephone calls to the defendant to entice him to do the deal, and that the informant was motivated by the potential of a substantial monetary reward. -5226

for our law enforcement officials to spend months luring an ... individual to cross the line between fantasy and criminality.”). Indeed, the lack of predisposition in this case is even more substantial than that of the defendant in Jacobson and the other cases cited herein. In no other case involving a sham presentation of cocaine has a defendant been convicted. This Court should find that Myrie was entraped.27 III. THIS CASE MUST BE DISMISSED DUE TO THE DISTRICT COURT’S VIOLATION OF THE SPEEDY TRIAL ACT. This case should never have proceeded to trial in the first place because the speedy trial clock ran long before the initial trial began. Pursuant to 18 U.S.C. § 3161(c)(1), “the trial of a defendant . . . shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.” Id; see also Bloate v. United States, 130 S.Ct. 1345, 1349 (2010) (holding that trial must commence within 70 days excluding enumerated events). The 70 day clock expired in this case on June 19, yet Myrie’s To be sure, these points and others also establish the second element of entrapment – inducement by the government – but these are “related elements” that both rely upon evidence of “whether criminal intent originated with the defendant or with government agents.” United States v. Theagene, 565 F.3d 911, 918-19 (5th Cir. 2009) (internal quotations omitted) (reversing conviction for failure to give entrapment instruction). -5327

trial did not commence until September 20 – a full 93 days late, more than double the amount of time permitted by the Speedy Trial Act.28 As such, the case against him should have been dismissed. See United States v. Jones, 601 F.3d 1247, 1256-57 (11th Cir. 2010) (dismissing case brought to trial after 75 nonexcludable days). Myrie’s initial appearance in the Middle District was January 7, 2010 (following his December 15, 2009 indictment), after which 19 days elapsed without any motions pending. Subsequently, the following periods of delay (which in effect stopped the clock from January 26 to April 29) must be excluded as set forth in § 3161(h): • January 26 to March 4, Myrie’s Motions to Disclose Identity and Compel Discovery [DE38, DE40] March 1 to April 19,29 Myrie’s Motion To Continue Trial [DE45] March 21 to March 26, Myrie’s Motion for Bond [DE57] March 29 to April 29, Myrie’s Motion to Compel [DE77]

• • •

A chart setting forth how the speedy trial clock ran in this case is attached hereto as Exhibit A. Myrie sought a much shorter continuance, but as a result of scheduling conflicts with the Government and the district court, the trial was continued until April 19. -5429


Excluding these time periods, the 70 day speedy trial period expired on June 19. Yet Myrie was not tried until September 20.30 The June 19 speedy trial expiration would not have been a problem, as trial was specially set for April 19. Myrie, who was incarcerated, was eager and ready to go forward on this date, and had made all travel arrangements for his witnesses. Inexplicably, however, just 11 days before the April 19 special setting, the district court sua sponte and without any explanation postponed the trial until June 21, in violation of Myrie’s speedy trial rights. DE68. Myrie promptly objected and asked the court to provide a reason for the delay, but the court denied this request. DE69, 70. Then, compounding the violation, on May 28 the Court again sua sponte continued the case to the September trial calendar, again without providing any reason for the delay in violation of law. DE83. Bloate v. United States, 130 S.Ct. 1345, 1349 (2010); Zedner v. United States, 547 U.S. 489, 507 (2006). Myrie again objected and made a speedy trial demand and request for severance from the co-defendants to the extent that the delay was related in some way to them. DE84. The District Court

The district judge set the trial for September 13. It was continued for one week on the motion of co-defendant James Mack. [DE104]. This week of delay should not be considered excludable as to Myrie because of his objection thereto [DE106] and because Mack plead guilty before the trial went forward. In any event, the one week continuance and all proceedings thereto fell well past the expiration of the speedy trial clock on June 19 and are therefore irrelevant. -55-


denied the motion, stating only that the reasons for the delay were “apparent from a review of the complete record” and that “[o]ne of the reasons supporting a continuance is the claim of the government that one of the co-Defendants has counsel of record with a conflict of interest.” DE86. This reason is legally insufficient to stop the running of the speedy trial clock as to Myrie. First, exclusion of this period is not permitted under § 3161(h) because the district court did not adequately set forth the basis for the continuance. §3161(h)(7)(A). The district court apparently sought to utilize the “catchall”

exclusion, §3161(h)(7)(A), but simply recited the language of that exception as a finding. This is insufficient. As the Supreme Court has stated, “[t]his provision demands on-the-record findings and specifies in some detail certain factors that a judge must consider in making these findings.” Zedner, 547 U.S. at 509; see also Bloate v. United States, 130 S. Ct. 1345, 1357 (2010). Section 3161(h)(7)(A) expressly requires that the district judge set forth “its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” Id. (emphasis added). This is significant, as “[i]t does not say that the court may weigh the interests of codefendants.” United States v. Theron, 782 F.2d 1510, 1513 (10th Cir. 1986).


Here, the district judge did not set forth any reason at the time of its sua sponte grant of either continuance. And its belated rationale regarding a purported conflict between a co-defendant and his counsel was inadequate because the judge failed to set forth how the ends of justice in granting the continuance outweighed the best interests of Mr. Myrie, as distinct from his co-defendant. See id. It was eventually disclosed31 that the government sought to disqualify Mack’s counsel because he had been paid by the buyers in Georgia, and the government wanted Mack to cooperate against those targets, who Myrie did not know. The government’s interest in turning two other codefendants against a potential target is not an “end of justice” that can outweigh Myrie’s speedy trial rights, especially where Mack continued to exculpate Myrie even after he had conflict-free representation. Second, continuances resulting from issues with codefendants do not properly fall within §3161(h)(7)(A) in any event, but rather under §3161(h)(6). It was

As the Sixth Circuit has recognized, “ex parte contacts between a party and the trial court in criminal trials ‘are nearly always problematic in light of the Sixth Amendment’s guarantee of a public trial.’ These concerns are heightened in the context of a motion for a continuance under § 3161(h)(8). . . . To this end, the district court must make on-the-record findings explaining the reasons for granting an endsof-justice continuance. We believe that in order to assure that the district court adequately considers whether the ends-of-justice outweigh the public’s and defendant’s interests in a speedy trial, the district court should also generally hold an adversarial hearing in which both sides participate.” United States v. Jordan, 544 F.3d 656, 665 (6th Cir. 2008) (internal citations omitted). -57-


impermissible for the district court to rely on the catchall exclusion when a specific exclusion applies, as this renders irrelevant the careful limitations drafted into the enumerated exclusions. See Bloate v. United States, 130 S. Ct. 1345, 1354-5 (2010) (holding that enumerated exclusions govern conclusively for the category of proceedings they address unless the statute specifically indicates otherwise). “[H]olding that a complex multiple defendant case is enough to toll the Act under subsection (h)(8) would emasculate the specific separate provision in subsection (h)(7), which excludes from the seventy-day limitation” only a reasonable period of delay. United States v. Theron, 782 F.2d 1510, 1513-14 (10th Cir. 1986) (finding that ends of justice finding was improper to toll the 70 day period of the Speedy Trial Act where the exclusion specific to co-defendants applied). As the Theron court recognized, under §3161(h)(6), only a reasonable period of delay may be excluded. Here, the court’s June 1 order delayed the hearing even to begin the process of addressing the so-called conflict until August 4. This time period alone was basically equivalent to the entire 70 day speedy trial period itself. This is not a reasonable period of delay. This is especially so because Myrie sought a severance to avoid the prejudice of a delay attributable to purported issues with his codefendants. The impropriety of the district court’s failure to sever the codefendants and failure to sustain Myrie’s -58-

objection as to the continuance was amply demonstrated by the fact that the codefendants pled guilty shortly before trial and were not tried with Myrie, such that Myrie endured an extra 154 days of delay while incarcerated for no reason whatsoever, in violation of his Speedy Trial Rights. See United States v. Hall, 181 F.3d 1057, 1063 (9th Cir. 1999) (holding that it was not reasonable for defendant to be “carried along in the two continuances” for 77 days, that co-defendant should have been severed, and that speedy trial rights were violated). The remedy for the violation of Myrie’s speedy trial rights, of course, is dismissal.32 18 U.S.C. § 3162(2); Zedner, 547 U.S. at 508. In this case, the dismissal should be with prejudice, given the length of the delay, the fact that the delay was precipitated by the government’s actions on a matter unrelated to Myrie, the fact that Myrie’s role in the conspiracy was small and involved no participation in the actual drug transaction, and the fact that Myrie was prejudiced by the delay given his incarceration.

This is true notwithstanding the fact that the court declared a mistrial after the first trial ended in a hung jury, and Myrie subsequently requested a continuance of the retrial. The declaration of a mistrial restarted the speedy trial clock as to the timing of the second trial; the prior violation was unaffected. United States v. Mulgado-Patida, 402 Fed. Appx. 367, 373, 2010 WL 4627875, at *5 (10th Cir. 2010); United States v. Kington, 875 F.2d 1091, 1107 (5th Cir. 1989); 18 U.S.C. § 3161(e) (providing that after a mistrial, trial shall commence “within seventy days from the date the action occasioning the retrial becomes final”). -59-


CONCLUSION For the foregoing reasons, Myrie’s conviction should be reversed and the case should be remanded with instructions that the case is to be dismissed with prejudice, or in the alternative, that Myrie should receive a new trial.

Respectfully submitted, /S/DAVID OSCAR MARKUS DAVID OSCAR MARKUS Fla. Bar No. 119318 MONA E. MARKUS Fla. Bar. No. 153648 MARKUS & MARKUS, PLLC 40 N.W. Third Street, Penthouse 1 Miami, Florida 33128 Telephone No. (305) 379-6667 Facsimile No. (305) 379-6668

MARC DAVID SEITLES Fla. Bar No. 0178284 Law Offices of Marc David Seitles, P.A Penthouse One 40 N.W. Third Street Miami, Florida 33128 Telephone No. (305) 403-8070 Facsimile No. (305) 403-8210


CERTIFICATE OF COMPLIANCE I CERTIFY that this brief complies with the type-volume limitation of FED. R. APP. P. 32(a)(7). According to the WordPerfect program on which it is written, the numbered pages of this brief contains 13,950 words, exclusive of certificates of counsel.

/s/David Oscar Markus David Oscar Markus

CERTIFICATE OF SERVICE I CERTIFY that a copy of the foregoing was served by U.S. mail this 16th day of December 2011, upon Linda J. McNamara, Deputy Chief, Appellant Division, Assistant United States Attorney, 400 North Tampa Street, Suite 3200, Tampa, Florida 33602.

/s/ David Oscar Markus David Oscar Markus



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