SDNY COURTHOUSE, Feb 27 -- Three men were arrested at 6:30 pm on February 25 and a full day later on February 26 they were presented in U.S. District Court for the Southern District of New York Magistrates Court.
Although not disclosed on February 26, two of the men were relatives.
Each was assigned his own lawyer, each of whom negotiated in the near-empty courtroom with Assistant US Attorney Jacob R. Fiddelman. Two were offered bail packages but for the third, the US sought detention.
This third man was listed as Christopher Colon Acevedo. But in a prior proceeding he was Christopher Adam Colon, and also Eduardo Vizcaino. The Colons said they were American citizens, born in Puerto Rico; Eduardo Vizcaino, apparently the third man's real or initial name, was born in the Dominican Republic.
On February 26, SDNY Magistrate Judge Sarah L. Cave took the cases in ascending order of difficulty. The first defendant, named Freyling Vizcaino - as it emerged on February 27, a relative of Eduardo Vizcaino -- through assigned counsel agreed to a bail package, which would leave him another night in the Metropolitan Correctional Center while his residence was checked by Pre-Trial Services.
The second defendant Franklin Vasquez Rodriguez through CJA lawyer Zachary Taylor pushed for release the same night. Taylor said that his client had been detained for 25 hours without being given a single meal. He said it was "beginning to resemble something not worthy of the United States."
AUSA Fiddelman took issue with that, replying that "there is nothing unjust about our legal system spinning its wheels as it does, discussion of whether it is American or not is besides the point."
Magistrate Judge Cave offered bail condition, but only after a visit of the defendant's home.
But for the third defendant, Christopher Adam Colon Acevedo or really Eduardo Vizcaino, AUSA Fiddelman sought detention. He noted that the defendant was already under Supervised Release after sentencing by SDNY District Judge Paul A. Engelmayer.
Inner City Press, the only media in the Magistrates Court on February 26, see first exclusive on this case here, has gone back and found this case: US v. Christopher Adam Colon, 16-cr-94 (Engelmayer). It involved the defendant picking up $57,000 for the sale of between one and three kilograms of heroin, in a BMW. On a guideline of 70 to 87 months, Judge Engelmayer sentenced the defendant to 18 months and three years of Supervised Release. More on Patreon here.
In this case, the defendant was arrested leaving an apartment from the Complaint says sounds of grinding and odors of drug processing chemical eminated (Warner twice likened it to a Jamba Juice at closing time). Inside were found cocaine and heroin, ostensibly in an open closet. In this apartment, there was no bed.
On February 26 Federal Defender Ariel Warner complained that despite what she said is an agreement between Federal Defenders and Pre Trial Services that FD clients will not be interviewed without their counsel present, her client was.
The results of that interview were discrepancies between Colon Acevedo / Eduardo Vizcaino's interviews with Probation in his case before Judge Engelmayer and Pre Trial Services in the instant case, including on whether he is or is not a U.S. citizen.
Judge Cave after a recess in her robing room to confer with Pre Trial Services offered terms of release, to begin after a home visit. AUSA Fiddelman asked her to stay her decision for 48 hours to allow an appeal to the Part I judge - who, Inner City Press reported on the evening of February 26 when the case was not yet even in the PACER system, is for this week like last none other than Judge Englemayer. Inner City Press was the only media in the Mag Court for this case and those preceding it, about a madame and a money launderer, and also alone in Judge Engelmayer's Part I courtroom for a recent bail denial, here.
Past 7 pm on February 26 Judge Cave stayed her order until the US appealed, which Fiddelman said would be February 27.
Inner City Press looked into and went to the appeal on February 27, at 11:45 am. Judge Engelmayer brought up the prior sentencing, and name discrepancy, and put questions to a Pre Trial Officer named Bostick.
AUSA Fiddleman emphasized the shifting stories and said the defendant might be prosecuted for false statements under 18 U.S.C. Section 1001.
Federal Defender Warner called this outrageous, and provided more detail on what she said was Pre Trial Services', or Assistant US Attorney Daniel Nessim's, violation of a seemingly unwritten protocol for clients of Federal Defenders but not of CJA lawyers.
Apparently, Pre Trial Services has agreed in all instances that defendants who are assigned Federal Defenders have their lawyers present for the interview for the pre-trial report. But for those with CJA lawyers, Warner said, that is only on a case by case basis.
Apparently some CJA don't want to, or don't have time to, be present for these interview, which can be held against their client. Or, like here, Pre Trial Services does the interviews before any CJA has been assigned and could waive presence.
What happened here, according to Warner, is that AUSA Nessim erroneously - unintentionally, we presuming, having covered Nessim for some time - said that Federal Defenders had a conflict of interest in representing Colon Acevedo / Eduardo Vizcaino. So Pre Trial Services, in the form of officer Bostick, conducted the interview with no lawyer present - no CJA yet assigned - and asked, are you an American citizen? To which the defendant said yes, apparently untruthfully.
Judge Engelmayer before ruling asked Bostick about the tenor of the interview, if he thought it possible the defendant had misunderstood the question, through the interpreter. Bostick replied that while it was possible, it did not seem likely to him.
Warner emphasized that her client had only a sixth grade education back in the Domincan Republic, from which she conceded he originates.
In fact, at his sentencing before Judge Engelmayer on April 17, 2017 his then lawyer (and still CJA) Telesforo Del Valle said, "Mr Colon's 33 years old, has only received a sixth grade elementary school education in the Dominican Republic." Del Valle also said, "the first thing Mr. Colon told me when he met me was My name is Eduardo Vizcaino." Judge Engelmayer in the same proceeding read from a letter from his neice, Luisanny Hidalgo Vizcaino. At sidebar, Judge Engelmayer asked Del Valle about the letters "about Eduardo Vizcaino, I'm not sure what the purpose of those is." Del Valle replied, "Mr. Colon's true name is Eduardo Vizcaino."
Judge Engelmayer nevertheless sentencing him to three years of supervised release rather than await an immigration detainer and deportation. And he was never deported; Fiddleman on February 27 said, ICE makes mistakes.
Judge Engelmayer overruled Magistrate Judge Cave's decision, with sorrow, he said. He rejected Warner's plea that her client get at least 48 hours before the now inevitable Violation of Supervised Release proceeding, in order to get his affairs in order including speaking with loved ones and preparing money for jailhouse commissary. AUSA Fiddleman said this "Forty Eight Hours" window would present a hightened risk of flight.
Judge Engelmayer overruled Judge Cave and ordered the defendant remanded. But the questions about Pre Trial Services attorneyless interviews of those who are assigned CJA counsel, and other questions, remain. Inner City Press will stay on the case. This one is (still) called US v. Colon Acevedo 20-mj-2227 (Cave / Engelmayer). More on Patreon here.
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