By Matthew Russell Lee, Patreon
SDNY COURTHOUSE, Sept 20 – Mark Gonzalez pled guilty on August 31, 2022 before a Magistrate Judge to a conspiracy to distribute 400 grams and more of fentanyl.
Then, he says, from jail in Essex County he called his retained counsel and said he wanted to take back his plea.
He says that was before the assigned District Judge formally accepted his guilty plea.
On April 14, 2023 U.S. District Court for the Southern District of New York Judge Victor Marrero held a proceeding. Inner City Press went and covered it.
Gonzalez wanted to fire his retained counsel.
The CJA lawyer present said he was honored to be on the CJA panel and would accept appointed. He asked the prosecutors to leave the courtroom, and that the transcript be redacted. Inner City Press was still in the courtroom, openly.
The upshot is that the change of counsel was made, and the CJA counsel will seek records about the alleged call, which would have been recorded, from the Essex facility.
The AUSA, back in the room, said they should get a copy too, and a copy of Gonzelez' CJA affidavit which the SDNY AUSA called a judicial record and a public document. (This is ironic because when Inner City Press has moved to unseal CJA affidavits, the SNDY US Attorney's Office has said it "takes no position.")
Judge Marrero said that Gonzalez had already been found eligible for CJA counsel, and that the CJA should filed a letter in two weeks about the fruits of the subpoena.
On April 28, the letter was filed - there was a call between Gonzalez and his then counsel, but the file has been mailed to the new CJA lawyer, on a CD.
On May 1, the new (soon to be former?) CJA lawyer wrote to Judge Marrero that he met with Gonzalez on April 29 and was told he is fired. He has requested a conference in which he he said he would request to be formally relieved as counsel.
Inner City Press went to that conference, on May 5. Gonzalez, dressed in the beige prison garb of the Metropolitan Detention Center, was brought in by two US Marshals, and spoke with a woman in the gallery, where Inner City Press was the only other civilian.
When Judge Marrero took the bench, the CJA lawyer asked for the prosecutor to leave. (He did). The CJA lawyer explained his "acrimonious" relationship with Gonzalez, and disagreement on legal strategy which Inner City Press is voluntarily not reporting here. But the public version is that Gonzalez contests the 400 grams of fentanyl weight, and whether he could have been in a conspiracy with his co-defendant or some other relationship.
Judge Marrero set a further - final? - conference on the matter of representation for May 12 at 10:30 am. He said he will not appoint any new lawyer for Gonzalez.
On May 10, the CJA lawyer wrote in to say that Gonzalez wants to keep him on, and he requested 30 days to file the motion for withdrawal of guilty plea. The AUSA wrote in to cancel the May 12 proceeding.
On July 7, there was another conference on the lawyer's motion to withdraw. Inner City Press went, but the prosecutor was out in the hall, only Gonzalez and outgoing / standby counsel inside. Later, this: "Minute Entry for proceedings held before Judge Victor Marrero:Status Conference as to Mark Gonzalez held on 7/7/2023. Defense counsel Richard Palma present with Defendant. AUSA Ni Qian present on behalf of the Government. Court reporter present. The Court scheduled this conference in response to Mr. Palma's letter informing the Court that he wished to be relieved as counsel. Mr. Palma and Defendant addressed the Court ex parte regarding defense counsels request to withdraw as counsel. The Court granted Mr. Palma's request to withdraw and ordered that Defendant shall proceed pro se with Mr. Palma on stand-by. Defendant's motion to withdraw his guilty plea shall be due July 21, 2023."
On October 31, 2023, Judge Marrero denied Gonzalez's motion to withdraw his plea: " it is hereby ORDERED that the motion of defendant Mark Gonzalez (Dkt. No. 132) to withdraw his plea is DENIED."
On January 11, Gonzalez got his last (CJA) lawyer: "The Court underscored that Mr. Gonzalez has been appointed numerous previous counsel, and that if Mr. Gonzalez decides that he is not willing to proceed with Mr. El Ashmawy, the Court will not appoint any other counsel, and Mr. Gonzalez would then have to proceed pro se or retain counsel. The Court reiterated it intended to proceed with sentencing on March 15, 2024, and the Court denied all outstanding requests or motions, without prejudice."
Received March 4 and docketed on March 8, Gonzalez wrote to Judge Marrero with emails between his former lawyer and one the lawyer called his "lady friend," about withdrawing his plea. Gonzalez argues it shows ineffective assistance of counsel. But sentencing is still set for May 17 at 1 pm. And his new CJA lawyer has request a conference to determine if Gonzalez wishes to go Pro Se again.
On March 11 Judge Marrero denied Gonzalez' (second) motion to withdraw his guilty plea.
On April 24, this: "On April 14, 2024, CJA attorney Yusuf El Ashmawy filed a letter notifying the Court that defendant Mark Gonzalez had fired him over email earlier that day, and requesting to withdraw as counsel for Gonzalez. (Dkt. No. 170.) The Court has previously warned Gonzalez that if he is not willing to proceed with El Ashmawy as counsel, "the Court will not appoint any other counsel... at this stage." (Dkt. No. 160, Hr'g Tr. 5:17-25; see also Dkt. No. 165 ("Regardless" of Gonzalez's choice, "the Court will proceed to sentencing of Gonzalez as scheduled on May 17, 2024.").) Accordingly, the Court hereby schedules a Faretta hearing this Friday, April 26, 2024, at 12:00 p.m., in Courtroom 15B at 500 Pearl Street, New York, NY 10007. At this hearing, the Court will consider El Ashmawy's request and determine if Gonzalez wishes to proceed with El Ashmawy or if he instead wishes to proceed pro se at his sentencing proceeding on May 17, 2024, at 1:00 p.m."
On May 10, Gonzalez' (outgoing?) lawyer wrote in asking for a 121 month sentence.
On July 19, Gonzalez was sentenced to 151 months: "JUDGMENT IN A CRIMINAL CASE as to Mark Gonzalez (1). THE DEFENDANT: pleaded guilty to count One of Superseding Information 21-CR-288. All open counts are dismissed on the motion of the United States. IMPRISONMENT: 151 months. The court makes the following recommendations to the Bureau of Prisons: The Court respectfully recommends that the Defendant serve his time of incarceration at FCI Fort Dix, or alternatively at FCI Danbury. The Court also respectfully recommends that the Defendant be admitted to the Residential Drug Abuse Program (RDAP), or any other drug treatment program available, to the extent he is eligible."
On August 14, a letter about the $5715 found under the bed in a red tin perfume box, that it was not connected to crime but rather a job with the NYC Department of Education and should be returned.
On August 24 the US Attorney's Office replied that Gonzalez now has no standing, and that his girlfriend cannot intervene in the criminal case but only in a later "ancillary proceeding pursuant to 21 USC 853 and Rule 32.2(c)." Few would do this for $5000, which the US still seeks in an order of forfeiture.
On August 30, this: "Gonzalez's objection is DENIED, and a Preliminary Forfeiture Order shall be entered forthwith. FOR THE REASONS STATES ABOVE, IT IS HEREBY ORDERED that defendant Mark Gonzalezs objection to entry of a forfeiture order is DENIED; and it is further ORDERED that a Preliminary Forfeiture Order as to Gonzalez shall be entered forthwith; and it is further ORDERED that, should Yahaira Rodriguez still wish to seek return of the seized money, she shall petition the Court for an ancillary hearing to adjudicate her interest in the forfeited property and to amend the Preliminary Forfeiture Order, pursuant to 21 U.S.C. § 853(n). An example of such a petition can be found at United States v. Meira, No. 15 Cr. 627 (S.D.N.Y.), ECF No. 439 (Oct. 17, 2018). Rodriguez is advised to attach to her petition documentation supporting her assertions. (See Order, Dkt. No. 198 (directing Rodriguez to provide documentation confirming her employment and salary at NYC DOE and confirming who was on the lease for her apartment during the relevant time period). it is further ORDERED that the Government and/or standby counsel Camille Abate are directed to promptly mail a copy of this Order to Rodriguez"
On September 20, this was docketed: "PRO SE LETTER by (21-Cr-288-1) Mark Gonzalez addressed to Judge Victor Marrero dated 9-5-24 re: I'm writing your honor to inform you that with all the lockdowns and the fact that MDC Brooklyn does not have stamps on there commissary, ("Mailbox Rule"). My motion for leave for reconsideration, that was written in early August of 2024, will be late. Thank you."
Inner City Press will continue to follow the case. It is US v. Gonzalez, 21-cr-288 (Marrero)
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