By Matthew Russell Lee, Patreon Song Vlog Podcast
BBC - Guardian UK - Honduras - The Source
SDNY COURTHOUSE, Nov 28 – Neil Cole, the brand manager charged with financial chicanery was freed on $1 million bond on December 5, 2019 and allowed to travel throughout the United States by agreement of the US Attorney's Office, contrary to the "SDNY and EDNY only" restrictions they routinely place on less affluent defendants.
SDNY Magistrate Judge Barbara Moses accepted the agreed bail conditions, and said that they can be appealed or asked to be modified before SDNY Judge Edgardo Ramos to whom the case was assigned.
On October 6, 2021, the first jury trial began and Inner City Press live tweeted Day 1 here, podcast here, vlog here. After a mistrial, a re-trial has opening argument on November 2, 2022. Inner City Press live tweeted here
and below.
On November 28, with the jurors just returned from five days off for the Thanksgiving holiday, by 10:30 am they returned with verdicts: guilty on all eight counts. First tweet here, more to follow.
Back on November 3, Iconix former general counsel testified that Cole was a "tyrannical" control freak, over multiple objections, here.
On November 4, after an investor, cooperator Seth Horowitz took the stand. Inner City Press tweeted here.
On November 8, in an otherwise empty courthouse on Election Day, the cross examination of Horowitz began. Inner City Press live tweeted here and below.
Jump cut to November 18, after Neil Cole testified - his lawyers put in a letter asking Judge Ramos to reconsider his ruling on unavailable witnesses "because Ethan Cole is simply not available to the defense" - Ethan would invoke his 5th Amendment right against self-incrimination. Letter on Patreon here; closings on November 21, jury legal charge November 22 - and verdict before Thanksgiving? Watch this site.
On November 9, from the US a request that Cole be admonished and warned by Judge Ramos: "Dear Judge Ramos: The Government respectfully submits this letter to apprise the Court of inappropriate conduct by the defendant that merits an admonishment. Specifically, Seth Horowitz’s counsel informed both parties that the defendant confronted Horowitz’s counsel at the end of the second break in the trial today and, in substance, said that Horowitz’s counsel was committing malpractice and ruining Horowitz’s life. The defendant made these remarks in the Courtroom while standing inches from Horowitz’s counsel and moments before Horowitz resumed testifying. The defendant’s remarks are plainly improper. The witnesses testifying at this trial—along with their counsel—should be able to testify without concern for whether the defendant will make harassing comments to them while they are in the courthouse. The Government respectfully requests" - full letter on Patreon here.
From November 8: Assistant US Attorney: Mr. Horowitz, does this invoice back up the claim of $1.9 million of work by GBG in Southeast Asia?
Horowitz: No.
AUSA: Why did Iconix pay the invoice?
Horowitz: As part of the earlier deal... Now with jury on a break, Judge Ramos asks Asst US Attorney, Is there an end in sight?
AUSA says the direct will continue such as to allow only a bit of cross today. Also an issue about admissibility of Wilmer Hale's invoices and legal fees. Thread will continue
They're back. AUSA: Mr. Horowitz, what did Neil Cole tell you? Horowitz: That we wouldn't get the give-back payments under Peanuts anymore, because it might draw scrutiny from the Schultz family?
AUSA: The Schultz family of the Peanuts brand? Horowitz: Yes.
AUSA: What did Neil Cole tell you then? Horowitz: That we could no longer do the payments under the Peanuts brand.
AUSA: Was the Peanuts invoice ever paid? Horowitz: No, it would have drawn scrutiny. Ethan Cole dropped off two folders at Iconix
AUSA: Walk the jury through it. Horowitz: Ethan Cole handed me the folders and said, We don't care which ones you pay, just pay us. Cooperator Horowitz: When I went into Neil Cole's office, he was removing his name from having negotiated the deals, and putting in other people's names.
Now during 2d jury break, Cole's lawyer says a curative instruction is needed, that the prosecutors implied to the jury that consulting a lawyer after an SEC inquiry shows consciousness of guilt. AUSA says he'll think about it over the break, consider language.
They're back, and *still* on direct examination. AUSA: Mr. Horowitz, after you resigned did you take another job? Horowitz: Yes, at Baked by Melissa. AUSA: What's that? Horowitz: A bite-sized cupcake company. I didn't tell them about Iconix.
AUSA: When you were at Baked by Melissa, did you start meeting with Federal prosecutors about this case? Horowitz: Yes.
AUSA: Did you tell Baked by Melissa? Horowitz: No. AUSA: Were you terminated by Baked by Melissa? Horowitz: Yes. After I pled guilty to fraud.
AUSA: Did you enter into a cooperation agreement with our office? Horowitz: Yes. AUSA: Why did you plead guilty? Horowitz: Because I am guilty. I could face 70 years in prison - or less, if I provide testimony, telling the truth. Then SDNY will write to the judge
AUSA: No further questions. Judge Ramos: Cross examination. Cole's lawyer Sean Hecker: You met with the government 40 or 50 times, correct?
Horowitz: That's correct. Hecker: What were the names of the agents? Horowitz: There's one here in the back of the courtroom Hecker: You did mock cross examination, right? Horowitz: We prepared.
Hecker: If they didn't like your answers, you discussed other ways of answering, right? Horowitz: True. Hecker: You were the lead negotiator on SEA-2 and SEA-2, correct? Horowitz: Yes.
Hecker: You faced prosecution and you had a choice, right? Horowitz: That is correct. Hecker: You decided to try to work your way out of the problem by cooperating?
Horowitz: That's partly true. Hecker: You believe cooperation is your best hope, yes? Horowitz: Yes
Hecker: And you're only testifying against Neil Cole, this is your only shot, right - you're hoping for that letter, yes? Horowitz: I don't know. I hope so. Hecker: You have to give substantial assistance, right? Horowitz: That is the phrase.
Hecker: You felt Mr. Cole was putting you down to make himself look stronger, right? Horowitz: I believe that is true.
Hecker: Show the witness DX 1023 at A1. This is an email you drafted, yes?
AUSA: Objection!
Judge Ramos: We'll break for the day.
The trial will continue.
In the first trial, back on October 25, 2021 Cole himself took the stand, see below.
After starting deliberations on October 27, the jury at 2:30 on October 28 said they are at an impasse and unable to reach a verdict that day - they left at 3 pm and will resume on Friday, October 29. From the cryptic note, it seems there may be more than one juror considering acquittal, at least on some counts.
Near 2pm on Friday, October 29, the jury sent a note that Juror 4 would not return on Monday. But on Monday, November 1 a partial (not guilty) verdict, on the conspiracy counts. Later, the jury returned deadlocked on eight other counts, triggering a mistrial, as "multiple jurors" were still "standing strong in their convictions." about the case. Inner City Press asked, Will Cole be retried on securities fraud, making false filings with the SEC and improperly influencing audits?
On November 12, the US indicated it had not decided.
On January 21, 2022 the US wrote it to say "it intends to seek a retrial" on Counts Two through Nine.
On October 30, 2022, on the eve of the re-trial, the US specified its opposition to Cole's subpoenas: "The Court’s prior opinion in this case did not, however, hold that all impeachment materials sought by trial subpoenas were necessarily “admissible” within the meaning of Nixon, as Cole now argues."
On November 1, after the 15 jurors (including three alternates) were picked in two full days of jury selection and left for the day, the sides fought about slides for their openings. Inner City Press live tweeted it here:
For US v Neil Cole retrial, now with jury selected & gone for the day, the arguments start.
Defense: The negotiations were led by Mr. Horowitz. The deal didn't close until Oct 1. I'll hand up the unredacted version.
Judge Ramos: I don't understand the objection about it being too late in the process. It's not hearsay. I will allow it. Is the next one about government cooperator? AUSA: It's a big red slide, to say, Horowitz is a bad person. Defense: We can change the color.
Judge Ramos: Why don't you. I'll allow the slide. The next is an organizational chart. What's the objection? AUSA: We wouldn't have a slide saying "GUILTY" - but if they want to try it.... Defense: I don't get it. Are they saying our slide means Not-guilty?
After estimates of 20 and 35 minutes for opening statements, Judge Ramos says, Try to not go beyond, I'll look very unhappy. Lawyers laugh - politely or nervously. When Horowitz: Direct this week, cross next.
Watch this site.
Back on October 29, 2021 Inner City Press live tweeted here:
jury note says they must leave at 3, jurors standing firm, and Juror 4 not returning next week. They ask if can render verdict on some not all charges. "If same jury," Judge Ramos says.
Judge Ramos: I don't know if we can have one jury reach decision on some charges and other jury [with 1 alternate added] on others. I'm thinking, No. Do you have Allen charges ready? Counsel: It's too early for that. [It's 1:46 pm and jurors are leaving at 3...]
Jury entering! Judge Ramos: You're asked if you can reach a unanimous verdict as to some counts but not others. But we don't want a partial verdict with this 12, and another with another 12. Juror 4 [he is named, but we don't], please some to sidebar
After a long sidebar, Judge Ramos tells jury: Yes, you can reach unanimous verdicts on some counts. But we'd like you to continue deliberating on others. So, go and continue. Jury exits.
Judge Ramos is asked to them them another note. Defense suggests: "Each separate count must be evaluated separately based on the evidence or lack of evidence." Judge Ramos does it. US has not objection. Judge Ramos: This will be provided to the jury.
On October 7, cooperator Seth Horowitz spend the whole day on the stand, still on direct. Inner City Press live tweeted here.
On October 8, the cross examination of Horowitz began, doggedly. Inner City Press live tweeted here.
On October 12, after Columbus Day, the cross examination of Horowitz continued but did not finish. Inner City Press live tweeted here and below.
On Sunday, October 17 the US Attorney's Office put in an argument for the admissibility of exhibits including Ethan Cole's e-mail to Jared Margolis about offsetting Iconix Korea with... Rocawear. Full contested exhibit on Patreon here.
On Monday October 18 Cole's lawyers responded that Ethan Cole was not a co-conspirator, and filed Horowitz' FBI's interview as 3500 material. 3500 material / FBI interview notes now on Patreon here.
On October 22, the trial churned to the end of the government case, with the defense to put on its first witness on Monday, but still not providing the name. Inner City Press live tweeted here.
On October 25, Neil Cole took the stand and Inner City Press live tweeted here.
On October 26 here's from the US Attorney's Office summation, which Inner City Press live tweeted here:
Closing arguments in US v. Neil Cole: Assistant US Attorney asks why "visionary CEO of Iconix" agreed to pay $2 million to a consultant for no work. #RoundTripping.
AUSA: Cole signed the invoices to sent $5 million back. This is a catastrophic fact. We saw him yesterday, criticizing people's costs at the Super Bowl. And yet he's signing fraudulent $5 million in invoices.
AUSA: Iconix had already paid for this marketing video (Zoo York Takes Yankee Stadium, on YouTube here; DX 415) before the paid the invoice.
AUSA: Neil Cole did it.
Judge Ramos: We're going to end, because the defense summation would take us past 2:40 pm. Tomorrow afternoon- you'll be able to stay past 2:40 if you want. See you tomorrow.
On the morning of October 27, Neil Cole's lawyer offered this summation, Inner City Press live tweeted here:
Cole's lawyer: Iconix's servers saved all emails, even if Horowitz says he deleted them. "Horowitz made it up and they know it. If he'd lie about that, he'd lie about anything. And that should make you doubt their case."
Cole's lawyer: "They're dredging up things from 22 years ago. [Candie's $75,000 SEC settlement]
Give me a break. Horowitz just wants a lighter sentence. He claims he wrote in code to himself. It's absurd." Cole's lawyer's closing is closing: "Neil Cole did not commit any crimes. We ask you find him not guilty."
Judge Ramos: Thank you Mr. Tarlow.
Note: in open court, Cole's lawyer said he wants to cross examining cooperation witness Seth Horowitz about concealment of prostitution related activities. Judge Ramos said that question will not be allowed - and when the Assistant US Attorney asked to seal the transcript, Judge Ramos agreed. But it was in open court. Can you say, #Whorowitz?
On September 30 in an in-person final pre trial conference, Cole's lawyer argued that hearing "$28 million" would be prejudicial. The AUSA said it show motive, and Judge Ramos agreed, citing US v. Quattrone, 441 F.3d 153, 179-80 (2d Cir. 2006).
Inner City Press will continue to cover the trial.
Watch this site.
The case is US v. Cole, 19-cr-869 (Ramos).
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