SDNY COURTHOUSE, July 22 – After a criminal ERISA trial began with jury selection and an argument to quash subpoenas, on July 22 a number of invoices to AFTRA Health and Retirement Fund were entered as government exhibits. A typical one was for $4000 from a company called Z Tech for work on two HP hard drives. Except that AFTRA has a service contract with HP, requiring replacement of these hard drives described as "hot swappable" in four hours or less, so why the outside contract? Still, were irregularities in these amounts, about computer invoices and not investments, what ERISA prosecutions were meant to be? Inner City Press has requested the exhibits and is still waiting, notice of eventual jury verdict too.
Earlier in the trial an audio recording of the defendant Shivanand Maharaj and cooperating witness Zeynep Ekemen was played was played for the jury while the transcript was shown on screens. Nearly all objections were overruled.
But then Zeynep Ekemen was cross examined about her non prosecution agreement. Had she promised to tell the whole truth? Yes.
Had she disclosed her arrest for shoplifting at the Short Hills mall in New Jersey? She had not. She said her lawyer told her it was expunged, "as if it never happened."
Had she told that U.S. Attorney's Office for the Southern District of New York, which gave her the non prosecution agreement, that she is not a citizen? No she had not. She believed and still believes she is a citizen.
But why, then, had she not gone back to Turkey when her father died there? At this, Ms. Ekemen cried. "I was in bed for a week," she said.
The question was, was Maharaj's defense lawyer humanizing her for the jury? The jury took a break, and Inner City Press sitting where it could see the exhibits on the lone monitor visible in the gallery was asked to move and did.
Even with the jury out of the room, the objections were made at a sidebar with the white noise turned up. More on Patreon, here. And now this, from the US Attorney's Office: "On July 19, 2019, the defense was permitted, without objection by the Government, to cross-examine Zeynep Ekemen regarding her involvement in a prior civil lawsuit in New Jersey Superior Court and the judge’s findings in which he did not credit portions of her testimony. (Trial Tr. 559:22-573:23.) No limits were placed on the extent of the cross-examination. During this cross-examination, the defense elicited that Ekemen lost the lawsuit and was required to pay punitive damages, but was not aware of the basis for the judge’s decision. Ekemen’s testimony was consistent with what she had told the Government years prior to trial. (See 3503-09.) This line of cross-examination into the prior findings of the New Jersey Superior Court was admissible under the caselaw of this Circuit, which permits, in certain instances, inquiry into prior adverse credibility findings. Most recently in United States v. White, the Second Circuit explained that, pursuant to Rule 608(b)’s dispensation for inquiry (only) into a prior instance of a witness’s conduct that is probative of the witness’s character for truthfulness or untruthfulness, trial courts may permit a witness to “be cross-examined based on ‘prior occasions when his testimony in other cases had been criticized by a court as unworthy of belief.’” 692 F.3d 235, 248 (2d Cir. 2012) (quoting United States v. Terry, 702 F.2d 299, 316 (2d Cir. 1983)).
Inner City Press has asked for the exhibits, and to be informed as much in real time as possible regarding the outcome of jury deliberations, which sometimes does not happened in the SDNY. Watch this site.
Further on non prosecution agreements: in the docket of this ERISA case a lawyer who also came up the the Jeffrey Epstein bond hearing on was named: Ms. Sigal P. Mandelker. She was named as having played a role in and signed off on Epstein's non-prosecution agreement in Florida. In the ERISA case it was she, as a Proskauer partner, who conducted the investigation that the firm is now seeking to withhold from the defense, see below.
An overarching question in the case is whether if a person in charge of information technology or computers for a retirement plan is accused of taking kick backs, does it violate the ERISA statute? The issue arose as an argument to try unsuccessfully to postpone the July 15 trial in before U.S. District Court for the Southern District of the New York Judge John G. Koeltl back on June 11. The request was triggered by a superseding indictment including new counts.
The defense lawyer for Shivanand Maharaj, Henry E. Mazurek (whom Inner City Press readers may remember from the US v. Pinto-Thomaz trial) asked for time to brief the issue, posing as a hypothetical would a custodian or janitor who just happened to work at an ERISA retirement plan be covered?
Judge Koeltl appears to believe the answer is yes, although he went to great pains to say he never decided an issue before it is fully briefed. The issue was fully brief by June 27. (After this, on July 12 Inner City Press was barred while SDNY Judge Victor Marrera charged "his" jury in US v. Kidd, here.)
On July 15 after jury selection was finished, or almost finished, Edward J. Canter of Proskauer came to argue that AFTRA's internal investigation should not be given to the defense, as it is work product, covered by attorney client privilege. Judge Koeltl did not appear convinced, but rather than rule he allowed Canter to put in yet more arguments in a letter and invited the lawyers back at 8:45 am on July 16.
On Sunday July 14 the government wrote to Judge Koeltl, trying to distinguish what fellow SDNY Judge Carter did, as "corrected" in a re-trail by Judge Hellerstein: "The Government respectfully writes regarding the argument raised by the defense, first in its requests to charge (see Dkt. No. 155 at 11, 28) and subsequently in open court, that an “outsider”—that is, a bribe payer—may be found guilty only of aiding and abetting another who engaged in an honest services fraud scheme, and not as a principal who engaged in such a scheme. This claim finds no basis in the relevant statutes, is contradicted by case law, and is wrong...The case relied upon by the defense in open court—United States v. Seabrook, No. 16 Cr. 467, is not to the contrary. Although it is true that Judge Carter’s jury instructions in that case required the jury to find that the outsider aided and abetted the scheme to defraud, in the context of that case, the Government did not object to such an instruction, and Judge Carter does not appear to have addressed the argument advanced by the defendant now.1...Although that trial ended with a hung jury, the briber payer subsequently pleaded guilty, and a second trial as to the bribe recipient proceeded to conviction before Judge Hellerstein." We'll have more on this.
Inner City Press will continue covering this case, USA v. Rubano, 17-cr-169 (JGK). More on Patreon, here.
As if in another world, at a dry cleaner's at 727 Westchester Avenue in The Bronx on 21 September 2018, Angel Perez walked in with a mask on his face and a gun in his hand, demanding money to support his Xanax habit.
The dry cleaner ended up shot in the ankle; Perez was arrested at his home nearby on Jackson Avenue.
On June 10 Perez who was allowed to plead guilty to brandishing rather than discharging or firing the gun showed up before SDNY Judge William H. Pauley III for sentencing. His Federal Defender Mark B. Gombiner asked that sentence be limited to the seven year mandatory minimum.
Assistant US Attorney Jacob R. Fiddelman argued for 125 to 135 months. In the gallery where Inner City Press was the only media present was Carmen Rosario which whom Perez has lived since he got out of prison in 2005. In a letter to Judge Pauley she says "he is still magical in my eyes."
The ex dry cleaner, his name redacted, wrote a victim's impact statement that he is an immigrant and that after being shot when he tried to sell his business he couldn't: "no one was interested in the property where a gun incident took place. I sincerely hope that we are protected from his potential revenge."
Judge Pauley after recounting Perez' early life - both parents were drug addicts, he said - addressed the defendant directly to say, This is unacceptable, from a 52 year hold. He imposed a sentence of 108 months, which is to say nine years. The ex dry cleaner wrote, "I am terrified by the thought that the attacker may [take] revenge on me and my family after serving his jail term."
Back on May 23, less than an hour after witnessing Peter Bright presented in shackled in front of his wife in the SDNY Magistrates Court, Inner City Press published into Google News a story about it, including Bright's statement that he was training an 11 year told girl in The Bronx.
Also Periscope video here, round up tweet.Inner City Press reported that Bright's Federal Defenders lawyer argued that a video camera in Bright's Brooklyn apartment building militates for his release on bond. He was not released.
Two weeks later the Daily Dot's Claire Goforth from Florida published a story about Bright's arrest based off the complaint on the PACER document system. This has been picked up, with and without more. But why is there no document in PACER about the proceeding that was due on June 6? On any renewed bid for bail by the Federal Defenders, who since that as reported by Inner City Press got another accused pedophile Byran Pivnick released? Inner City Press which first reported this case will continue on it. Watch this site, @InnerCityPress and the new @SDNYLIVE.
See Inner City Press' May 23 Periscope round up, at 1:10 on this pedophile presentment, here
#Periscope just out of #SDNY after death penalty sought in same room banker Calk released from, Mag Ct madness, UN fails pscp.tv/w/b7dHvjMwMDIy…
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From Inner City Press' exclusive May 23 report: "A dual British - US citizen living in Brooklyn but reaching out for underage sex was presented, with his wife in the courtroom by that time only with Inner City Press. Federal Defender Amy Gallichio argued that Peter Bright should be released, since his building in Brooklyn has a video surveillance system.
But would the neighbors want the U.S. Attorney's Office to see their comings and goings? Gallichio offered for Bright to install his own camera over his door and turn the files in to the government. Judge Freeman found this of intersted and invited a second try, if only in writing. She quizzed Bright's all-American wife in the gallery and said the Peter is lucky. Was his claim to be "training" an eleven year old girl in The Bronx just puffery? Inner City Press will stay on this case." And now we are.
