By Matthew Russell Lee, Exclusive
SDNY COURTHOUSE, August 30 – With the use of a confidential witness, the US Attorney's Office for the SDNY in late 2017 filed a complaint for drug trafficking against Dawei Huang. It involved at least "a half pound of methamphetamine."
On August 30, 2019 when Inner City Press went into the courtroom of U.S. District Court for the Southern District of New York Judge Katherine Polk Failla, Huang was getting released on bond. As soon as Inner City Press walked in, both defense and government lawyers, FD's Ian Marcus Amelkin and AUSAs Lara Pomerantz and Sheb Swett, asked for an "off the record" sidebar with Judge Failla.
Then Judge Failla had the court reporter come over, even though she said the transcript would be sealed without making any on the record findings as to why. (Judge Failla is otherwise an interesting judge to cover; this failure to comply with case law shows a more systemic problem in the SDNY that Inner City Press and @SDNYLIVE hope to address.)
After the sidebar and without explaining, Judge Failla said that Huang could be released. At the time, the 3 pm slot on August 30, Huang wasn't even listed on her calendar, including an FLSA case that apparently never happened, 1:18-cv-06108-KPF Geffner v. Quanta Services, Inc. et al. In the docket of this case, there's nothing but sealed documents for months. We'll have more on this.
Back on August 7 a criminal presentation with Arabic interpreter was set for at 2:45 pm in the U.S. District Court for the Southern District of New York courtroom of District Judge John G. Koeltl. Inner City Press, alerted by its sources, went into the courtroom. Soon Assistant US Attorney Robert B. Sobelman was asking Inner City Press questions.
At 3:09 pm Judge Koeltl's acting clerk called the case as "United States versus John Doe." The defendant's lawyer, who told the US Marshals not to bring his client out of the holding cell, asked Judge Koetlt for a sidebar. Judge Koeltl, unlike Circuit Judge Richard J. Sullivan on July 26, granted the sidebar. The white noise was turned on.
After a more than eight minute animated sidebar discussion, with the two lawyers, two clerks, the acting deputy and a court reporter, Judge Koeltl took the bench and asked Inner City Press to leave. He said there was a compelling need for secrecy, without explaining what it was, and said that the government would provide some update about this need for secrecy -- in sixty days.
The deputy came and indicted it was time to leave. While doing so, this reporter asked Judge Koeltl, What's the case number?
After a pause, Judge Koeltl said replied with a number.
But down at the PACER terminal in SDNY Press Room 480, where Inner City Press earlier on August 7 was belatedly assigned a desk, the response to this quiery was, Cannot find [that] case."
The defendant, it was said before Inner City Press was ordered out, was arrested the night before. His defense lawyer joked with the deputy about Mad magazine's series, "Spy versus Spy." In the gallery were a half dozen camouflage dressed agents whom Judge Koeltl allowed to stay, along with a representative of pre-trial services. Is the defendant going to be released on bond? Is he - or she - a cooperator? What is the basis for this unannounced total sealing of the courtroom for a criminal presentment? Inner City Press will have more on this.
Before the narcotics conspiracy trial US v. Ernest Murphy set to begin August 12 in the U.S. District Court for the Southern District of New York, Circuit Judge Richard J. Sullivan on August 6 indicated his willingness pending submission a map to partially seal the courtroom during the testimony of at least one witness, an undercover officer.
Inner City Press which has been covering the Murphy case some days ago contested sealing in another case before Judge Sullivan, so far without response. It is not clear for this partial sealing what opportunity the press or public have to be heard.
Assistant US Attorneys Karin Portlock, Elinor Tarlow and Matthew Hellman made the request for partial sealing and argued for it in a final pre trial conference on August 6, with Inner City Press in the gallery. They resisted specifying where the undercover officer proposes to continue operating, referring to a map that is listed as Government Exhibit 114. That map is not online, and recent requests for exhibits have gone unanswered.
Even if and when this exhibit it shown to the jury, there is no video monitor for the press and public gallery in SDNY Courtroom 15A Judge Sullivan has been using, which has for example no swinging doors by the jury box and no name on the front door.
The government request states, and Judge Sullivan on August 6 repeated, that an audio feed would be provided into another courtroom and a court reporter's transcript available in 24 hours - if, it seems, one can afford it. Even Murphy's lawyers said they cannot afford the Live Feed that Judge Sullivan and the government counsel table will have.
Judge Sullivan in his affable way asked defendant Murphy if he had been informed of a plea offer, to a five to forty year sentence, previous offered. Murphy said yes, adding "I'm not guilty."
So the trial will begin on August 12, with the witness listed with a pseudonym such that potential jurors won't know if they know the person - apparently a woman - or not. We'll have more on this.
The day before the final pre trial conference, on August 5 a co-defendant of Murphy's was sentenced to 54 months imprisonment.
Robert Rhodes was a part of this alleged crack conspiracy for 11 weeks, responsible for 155 grams of crack. But as Judge Sullivan noted, Rhodes previously served two years for shooting a man in the shoulder - then got out of jail and sold crack.
Rhodes' lawyers Sarah M. Sacks and Bennett M. Epstein asked for 36 months, citing personal tragedy, time in the cold at the MDC and that the State of New York provided a dangerous handball court then got Rhodes addicted to opioids.
Assistant US Attorney Karin Portland, who will prosecute the Murphy trial starting August 12, emphasized that even addicted to opioids, Rhodes sold drugs to others. Judge Sullivan dug into this, and to other issues, pointing out that they cut both ways, like the family support Rhodes has. He had the support when he committed the crimes, too. At a fifteen minute break to deliberate, Judge Sullivan explained his reasoning for the 54 months, saying public explanations are important. Inner City Press agrees. We'll have more on this case, US v. Tyshawn Burgess, Ernest Murphy et al., 18-cr-373 (RJS), and other cases including those below.
Back on July 22 in a court proceeding that began as open, with the defendants' family members and even legal interns present, Inner City Press was ordered to leave, leaving no media or member of the general public present.
It took place in the U.S. District Court for the Southern District of New York at 500 Pearl Street in Courtroom 14C before Judge Paul A. Crotty: USA v. Perlson, 18-cr-751.
When Inner City Press went in at 11:30 am, at first Judge Crotty was asking why a transcript in the case said it was from November 31, when November has only 30 days.
"Good catch," the Assistant US Attorney said, adding that he thought it was from October 31. He added that Perlson would now be allocuting to Count 2 and that there was a cooperation agreement.
Suddenly the lawyers pointed out Inner City Press in gallery, and said while legal interns were OK then objected to Inner City Press' presence. Judge Crotty asked Inner City Press to identify itself.
"I am a reporter. If you are going to try to close a public courtroom there must be specific findings, for specific portions. There is case law."
There followed a sidebar, apparently transcribed, from which Inner City Press was excluded. At the end Judge Crotty while ordering Inner City Press to leave said that the government's case is moving along well and that he hoped to unseal the transcript in a month.
But is that enough? Inner City Press left the courtroom as ordered, adding as it left that a case on point is United States v. Haller, 837 F.2d 84, 87 (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).
But Inner City Press was not given an opportunity to make its argument before being ordered out. And once back to the PACER terminal at which it has been working for months, searching by "Perlson" resulted in nothing, and 18-cr-751 "case not found."
On 9 July 2019 before SDNY Judge Loretta A. Preska: listed on PACER and in the SDNY lobby for 10 am before her was the case of USA v. Connors Person, et al, 17-cr-683, complete with letters of support from the head bank regulators of the state of Alabama.
But when Inner City Press arrived at 10:10 am, there was a shackled defendant with cornrows at the defense table. His lawyer stood and summoned Assistant U.S. Attorney Frank Balsamello out into the hall by the elevators. When they returned, at the same time as two of the defendant's family members, Judge Preska asked about those present in the room, and summoned the lawyers up for a sidebar - with a court reporter, which may later be significant.
After the sidebar discussion, Judge Preska called the case as US v. Santino-Barrero (phonetically - it was not written down anywhere.) Then Judge Preska asked the defendants' family members to stand, then the legal interns, then other interns introduced by one of the Marshals.
"Is that you in the back, Mister Lee?" Judge Preska asked. Inner City Press previously reported daily on the UN bribery trial and sentencing of Patrick Ho before Judge Preska, once answering in open court her question about press access to exhibits in that case. So the answer was Yes.
I'm going to have to ask you to leave, Judge Preska said.
The PACER terminal in the SDNY Press Room does not list a Santino Barrero as a defendant. The Bureau of Prison's website is only searchable with a first name, which was not given.
