SDNY COURTHOUSE, June 25 – A sentencing of a defendant seeking time served, seemingly for cooperation with the government, was abruptly declared "sealed" by U.S. District Court for the Southern District of New York Judge Lorna G. Schofield on June 17. Despite requests, Inner City Press has yet to be informed even of the name of the sealed case.
By contrast, on June 25 Judge Schofield in open court sentenced a defendant Jonathan Huertas who brandished a gun in a Manhattan restaurant to 15 months in prison. Then she asked the U.S. Marshals to give Huertas time to say goodbye to his family and friends, his step-children and their mother, expecting his baby the next day, his lawyer Christopher Booth said.
Huertas was initially sentenced to 32 months in prison for his role in an oxycodon conspiracy surrounding a clinic on Southern Boulevard in The Bronx, Astramed. That sentencing memo, headlined by then U.S. Attorney Preet Bharara and still Assistant U.S. Attorney Edward B. Diskant, asked for 87 to 108 months.
Since Huertas' release, according to Diskant's June 22 letter, he robbed a store while saying he had a gun. The charge was dropped after he told Probation that the target owed him $3,900.
Then on January 1, 2019, Diskant's letter says, Huertas brandished a black firearm in a restaurant in Upper Manhattan. Judge Schofield said she had seen the video (while her June 17 sentencing was, to the public and Press, unseen).
For this, Diskant and the current U.S. Attorney Geoffrey S. Berman asked for a sentence of 24 months. Booth complained that Probation had only just informed him they were raising their recommendation from four to nine months. Schofield, after thanking those in the gallery which can sometimes be turned away from, settled on 15 months.
Earlier on June 25 Judge Schofield held a change of counsel proceeding in which she told defendent Carlos Rondon Moreno that while she would agree to change his lawyer once, from Federal Defender Jonathan Marvinny to a CJA lawyer, there would be no second change, no matter what. Rondon Moreno is charged with alien smuggling, and his pretrial motions were due on June 24. Now it's pushed back into August. But was least the case is public.
Back on June 17 Judge Schofield said she was going to seal the transcript, but that once this reporter walked into her open courtroom 1106 in 40 Foley Square, she moved the entire proceeding into her robing room, closed to the Press and public.
Now on June 18 Inner City Press hasrequested the name and number of the case, and that all portions that do not need to be redacted or sealed be provided or placed in the docket, citing in support this its requests: sentencing proceedings are presumptively open in the Second Circuit. See United States v. Alcantara, 396 F.3d 189, 196 (2d Cir. 2005) ("There is little doubt that the First Amendment right of access extends to sentencing proceedings.").
Before closing a proceeding to which the First Amendment right of access attaches, the judge should make specific, on the record findings demonstrate that closure is essential to preserve higher values and is narrowly tailored to serve that interest. See United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988). United States v. Cojab specifically dealt with hearings (in that case, a pretrial hearing) conducted in the robing room.
Inner City Press is pursuing this because it is a precedent and trend. On June 18 affable SDNY Magistrate Judge Sarah Netburn declared a proceeding in Courtroom 5A sealed with "delayed docketing;" in her two days in the Magistrates Court this week not a single filing has been made available on PACER. There's more - watch this site.
On June 17 when Judge Schofield, her Courtroom Deputy James Street and the shackled defendant, Assistant US Attorneys and US Marshals emerged twenty minutes later, Judge Schofield said only, "We're adjourned." There was no disclosure of the outcome of the proceeding - as Inner City Press walked in, the defendant's lawyer was asking for time served."
Then Judge Schofield said she wanted to "shake hands with our visitors" and proceeded to do just that with the two other people in the gallery. Inner City Press left.
No one where on the electronic board in the SDNY lobby at 500 Pearl Street was any proceeding before Judge Schofield at that time list. Nor in the day's PACER calendar.
So it is both a confidential sentencing, and a confidential case?
Judge Schofield's Rules for Criminal Cases, ironically, provide that there is a presumption that all sentencing submissions are public, and that if anything is redacted only those pages with redactions can be withheld from the public docket.
But no such distinction is possible when an entire proceeding is moved into the judge's robing room barred to the press and public, with no notice or opportunity to be heard. Inner City Press will have more on this - see also @InnerCityPress and the new @SDNYLIVE.
Before Judge Schofield: Steven M. Calk of FDIC-regulated Federal Savings Bank was presented and arraigned on May 23 for financial institution bribery for corruptly using his position with FSB to issue $16 million in high-risk loans to Paul Manafort in a bid to obtain a senior position with the Trump administration, namely Undersecretary of the Army.
