By Matthew Russell Lee, Patreon Editorial
BBC - Guardian UK - Honduras - Video
SDNY / Mag Exclusive, August 10 – Gerald Migdol, a lawyer who develops real estate in Harlem, was arrested early on November 19, 2021. Inner City Press covered his arraignment and when he was freed on $250,000 bond.
On April 12 the other shoe dropped when New York State Lt. Gov. Brian Benjamin was indicted.
On August 10, there was oral argument on Benjamin's motions and Inner City Press live tweeted it here and below.
On April 14, the day before a scheduled proceeding in the Migdol case, sources told Inner City Press that Migdol had appeared in Magistrates Court - presumably to cooperate / plead guilty. Inner City Press tweeted and reported it. On April 15, at the time of his proceeding, it was "adjourned sine die." See here.
On May 9 the US Attorney's Office confirmed Migdol pleaded guilty on April 13, photo here. Letter: "Dear Judge Oetken: The Government writes respectfully regarding (i) the Superseding Information (“S-1”) as to the above-referenced defendant, entered during a change-of-plea hearing held on April 11, 2022; (ii) the transcript of that proceeding; and (iii) this Court’s April 13, 2022 order accepting the defendant’s plea, all of which are currently sealed. In light of subsequent events and certain developments in the Government’s ongoing investigation, the Government respectfully submits that it is no longer necessary to maintain the above materials under seal or further delay the associated docket entries. The Government thus has no objection to the docketing of the materials listed above, and no objection to this letter being docketed following their unsealing. Respectfully submitted, DAMIAN WILLIAMS United States Attorney Southern District of New York" " Granted. The referenced documents and associated docket entries are hereby unsealed. This letter shall also be docketed. So ordered."
On May 10 they unsealed the April 13 transcript which reflects the Migdol's counsel asked "because of the sensitivity of the matter we would ideally ask that you actually seal the courtroom."
THE COURT: "The government cannot request that the courtroom be sealed unless there is an order from Washington, right?" AUSA Moe: That's correct, your Honor.
THE COURT: The only people in the courtroom now are court staff, the government, and Mr. Migdol's counsel. And I understand the government will be seeking the sealing of the transcript." AUSA Moe: Yes.
So, stealth sealing. And scoop, including as to cooperation:
THE COURT: I note that the plea agreement refers to the possibility that the government may advise the sentencing judge by letter that you have given the government substantial assistance which could lead to a reduction in your potential prison sentence." 5K1....
On May 12 Benjamin was before Judge Oetken and Inner City Press was there. His lawyers again pushed the McCormick precedent, and a briefing schedule was set, culminating in an oral argument August 10. Benjamin's trial is set for January 23, 2023. Afterward, Inner City Press in Foley Square asked Benjamin when he knew of Migdol's plea - since the basis of the sealing was "sensitivity," presumably meaning a threat of retaliation. There was no answer. Video here.
Editorial on closing the loophole here.
On August 10, there was oral argument on Benjamin's motions and Inner City Press live tweeted it here:
All rise!
Judge Oetken: We're here on defendant's pre-trial motions. I'll probably have some questions.
Benjamin's lawyer Barry Berke: We are in campaign season and candidates who are also elected officials are raising money, including from beneficiaries...
Kramer Levin's Berke: The prosecutors are twisting themselves in knots to try to avoid the 2d Circuit's line on this. This is the most aggressive political corruption case in US history. It must be dismissed, under McCormick. A specific quid-pro-quo is required.
Berke: I gave Mr. Hampton 2 hand-outs... [Bronx] Congressman Garcia, whose conviction in the Wedtech case was overturned.
Judge Oetken: The language of Garcia, in maybe controlling dicta, says that Evans revised the rule in campaign contribution cases
Judge Oetken: To you, what does "explicit" mean?
Berke: What the 2d Circuit said in Garcia - it has to be express. In the Silver case, it's said that too. There's never been a case like this. Former Judge Sotomayor dealt with this in her Bridgeport CT case
Berke: I know your Honor knows the Supreme Court very well [LOL] but in Evans, he was charged with tax violations. The jury convicted him on it. But the Sup Ct says--
Judge Oetken: I'm pretty familiar with it. Justice Stevens' majority decision is silent on this.
Judge Oetken: Let me give you an example. Officials says to non-profit, we've got a grant for you, but I need campaign contributions. And the non-profit says, I can pay $20,000. Is that enough? Berke: That's not what happened here. Let me go back...
Berke: The Senate just passed a bill. Maybe Senator Manchin asked for contributions. Senator Sinema (laughs) maybe have asked for contributions. Was it bribery? Judge Oetken: Here, Para 40 says "in exchange for." It's must mushy, as in Menendez
Now Prosecutor Jarrod Schaeffer. Judge Oetken: Vague future action by the politician is not enough. Here, there's the $50,000 granted voted on by the State Senate. But the campaign contribution, was there any amount agreed on? AUSA: Let's talk about Menendez.
Judge Oekten (to Berke) What if one world leader said to another, "I can give you anti-tank missiles. But I'd like a favor from you." Isn't it a quid pro quo? Berke: That's a non campaign contribution context! (Some law-nerd laughter, very restrained, in courtroom)
Now Berke: What happened the night before Migdol's allocuation poses separate problems for the indictment.
[Note: Inner City Press exclusively reported Migdol's plea, Berke favorably cites a decision by Judge Alison Nathan - with an eye on the 2d Circuit, where Judge Nathan is now? This case, like for example the crypto currency and NFT "insider trading" cases, seem bound for the 2d Circuit. Stories later.
But wait... that's more! Even though Judge Oetken is unlikely to rule on any of this today, now AUSA argues that Migdol's allocuation was NOT like that of Majidi in US v. Ahuja et al, which Inner City Press also covered
Judge Oetken: I'll take all this under advisement and decide later. You'll find out by ECF. Inner City Press will be on the look out for the decision(s).
On July 14, Benjamin's lawyer submitted a memo questioning and requesting discovery into Migdol's allocution - but large portions of the filing are blacked up, redacted. Photo here. Watch this site.
Back in November Migdol was brought before U.S. District Court for the Southern District of New York Magistrate Judge Ona T. Wang on the afternoon of November 19, in blue jeans. Inner City Press was there, in the gallery.
As it happens, Judge Wang was also on duty on April 12, 2022. In the early afternoon she arraigned and freed Benjamin - on agreed conditions that allow travel to Georgia and Virginia, but not Albany: "Minute Entry for proceedings held before Magistrate Judge Ona T. Wang: Initial Appearance as to Brian Benjamin (2) held on 4/12/2022. Detention Hearing as to Brian Benjamin held on 4/12/2022. Date of Arrest: 4/12/2022, Vol. Surr. AUSA Alison Moe & David Abramowicz. Defense Counsel (Retained): James Gatta & William Harrington. Proceeding: Rule 9. BAIL DISPOSITION: Agreed conditions of release; $250,000 PRB; 1 FRP; Travel restricted to SDNY/EDNY/N.D.Ga., E.D.Va & points in between; Temporary additional travel upon consent of AUSA & approval of Pretrial Services; Surrender travel documents (& no new applications); Pretrial supervision as directed by Pretrial Services; Defendant to be released on own signature plus the following conditions: FRP; Remaining conditions to be met by 4/19/2022. ADDITIONAL PROCEEDINGS: Defendant arraigned; pleads Not Guilty. Conference before District Judge on 4/19/2022 at 11:30 a.m.."
Inner City Press sought to ask Benjamin why, when he left the courthouse, video here.
On April 18, Benjamin appeared with his new Kramer Levin lawyers, who said that this is the first case prosecuting only political contributions, with no personal gain. Inner City Press live tweeted it here
OK - Ex NYS Lt Giv Brian Benjamin set to appear in Courtroom 318 at 11:30. Inner City Press exclusively reported last week co defendant (cooperator?) Migdol in Magistrates Court
Benjamin and 2 lawyers here in Courtroom 318. 3 prosecutors. Awaiting Judge Oetken.
From Lt Gov to defendant in less than a week.
Here's Judge Oetken. Benjamin has Kramer Levin.
AUSA: We've given 160,000 pages to the defense Benjamin's lawyer: This case is based only on political contributions, not personal benefit.
Defense wants 3-4 weeks. Judge Oetken sets for May 12, 11 am. Benjamin can now travel to NJ. Story (and vlog
and here's the live-streamed vlog, here.
We'll have more on this.
Back to Migdol's initial presentment: he Office of the US Attorney, being publicly sworn in at exactly that time at the Harlem Armory, agreed to Migdol's release on $250,000 personal recognizance bond.
Migdol has a gun, which must be turned into the local police precinct by November 23, and an expired passport due later.
According to the prosecutors, "Candidate-1 filed a certification with the CFB in or about September 2019, becoming a candidate for the office of the New York City Comptroller and opting in to the CFB’s matching funds program. Thereafter, MIGDOL and others conspired to obtain fraudulent contributions for Candidate-1 that would be used, among other things, to seek public matching funds from the CFB. .. Through these and other efforts, MIGDOL and others involved in the scheme procured nominee and other fraudulent contributions for Candidate-1’s campaign, which in turn were submitted to the CFB by Candidate-1’s campaign in connection with requests for at least tens of thousands of dollars in additional public matching funds."
The case is assigned to District Judge J. Paul Oetken, who has scheduled a conference for December 6 at 11.
Inner City Press will stay on the case.
It is US v. Migdol, 21-cr-706 (Oetken / Wang)
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