Fireman Arrested Over Pot Farm Faces Retrial

MANHATTAN (CN) - A New York City firefighter convicted of running a basement pot farm was not afforded a fair trial, the 2nd Circuit ruled, giving the Queens man another chance to contest cellphone records.

Patrick Murray was sentenced to five years in prison after he was found guilty on four counts related to a pot farm uncovered in the basement of a house in the Bellrose neighborhood of Queens.

Matthew Cody, a fellow fireman who owned the house, copped a deal and testified that the grow operation was all Murray's idea. Murray meanwhile contended that he knew nothing about the pot farm.

During trial, prosecutors pointed to records showing that Murray made 97 calls from his Sprint Nextel between November 2008 and February 2009 that pinged off a cellular tower four blocks from Cody's house.

Murray wanted to call a surrebuttal witness to give another explanation about what he could have been in that area aside from visiting Cody's house, but the court refused.

On appeal, Murray said he was denied a fair opportunity for a meaningful defense.

The government countered that Murray should have used his direct case to provide evidence of his presence in the area of Cody's house. It also argued that the witness could not have helped Murray anyway since the agent who testified about the records undermined the value of that evidence herself by conceding that a ping off a particular tower could come from a call made as far as 5 miles away.

A divided panel of the 2nd Circuit disagreed on Thanksgiving Eve, vacating Murray's conviction and remanding the case for retrial.

"The government never showed that [the tower] was the closest tower only with respect to a 'ten block radius' around Cody's house," Judge Pierre Leval wrote for the majority. "Murray's answers never addressed whether he had been in the area for purposes other than to hangout' or visit bars or the homes of his mother or acquaintances, nor did they address the visits to the area that he mentioned."

It is also "completely without merit" for the government to argue that Murray forfeited the right to respond to evidence in the government's rebuttal case, according to the ruling.

The evidence that a cell tower received 97 pings from Murray's phone calls doesn't place him at the center of the pot farm, but merely shows that he frequented places in the area.

"We think the denial of his request to offer such surrebuttal evidence denied Murray a fair opportunity to defend against the government's evidence," Leval wrote. "Without the cell tower evidence, the case was essentially a credibility contest between Cody and Murray."

The judges clarified that their holding in no way implies "that we believe Murray was more believable than Cody. We suggest no such thing."

"Our point is only that, when the government on rebuttal introduced a new issue into the trial, undertaking to impeach Murray's assertion that he had been to Cody's house only about five to seven times by a showing that his phone had pinged off a nearby tower 97 times, Murray should have been permitted to offer evidence of other explanations for the 97 calls on that tower," Leval wrote.

Writing in dissent, Judge Peter Hall said that the denied witness did not amount to an abuse of discretion because the cell tower evidence did not raise a new issue regarding his presence in the neighborhood.

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