SDNY COURTHOUSE, March 26 – With police
helicopters overhead and completing protests on Worth
Street, Nicolas Maduro was bought on March 26 before U.S.
District Court for the Southern District of New York Judge
Alvin K. Hellerstein. Inner City Press live tweeted it, here
and below followed by link to analysis:
11:42 am
All rise!
Barry Pollack: Your Honor, in Luis versus US the Supreme
Court said that defendants have a right to counsel of
choice, and to use untainted funds. Also, funds of a third
party. Here, the Government has not contested these 2's
property interest
Judge Hellerstein: The
point in Luis was UNtainted funds. The similarity here is
that... the sanctions are equivalent to the taint.
Sanctions on Venezuela from paying out. That's a
difference, isn't it?
Pollack: That is not outcome determinative under
Luis
Judge Hellerstein: We
have no case like this. Under Monsanto, appointed counsel
is OK
Pollack: There, funds were tainted. Here, we are not
asking the court to order OFAC to allow the funding. But
we are asking you to dismiss the case
Judge Hellerstein: I
was re-reading the indictment the other day. It seems it
would take defense counsel a lot of time to investigate,
in Venezuela and Colombia
Pollack: In Venezuela. As in the Stein case, there will be
voluminous discovery and motion practice
Judge Hellerstein: What
about the resources available to the Federal Defenders or
CJA [Criminal Justice Act] counsel?
Pollack: Defendant has a right, if he has funds, to pick
his own counsel. The public defender is for those without
resources, nor for those who do
Judge Hellerstein:
Let's hear from the government. Are you finished Mr.
Pollack?
Pollack: In Stein 2, while CJA relief would be better than
nothing, it would not be the substantial equivalent.
Mark Donnell: With the removal of sanctions, Venezuela has
funds
AUSA Wirshba: Your
Honor is right that this case is unique.
Judge Hellerstein: What is the interest of the government
now in blocking those funds?
AUSA: National security and foreign policy
Judge: We are doing business with Venezuela.
AUSA Wirshba: The
sanctions preexisted this case. This is a case in which
the purported funds are outside of the US
Judge: Property interest...
AUSA: The government does not concede that there is a
property interest here. There is no legitimate expectation
here
Judge Hellerstein:
Thing have changed in Venezuela
AUSA Wirshba: Yes, thing has changed in Venezuela. But
it's OFAC's role to make this determination.
Judge: We do business with Venezuela, the oil is important
because of the Strait of Hormuz
Judge Hellerstein: I am
looking at the Executive Order which set up the sanctions,
it was by President Obama. The interests are no longer
implicated. Maduro and Flores are here. We have changed
the situation in Venezuela
Judge Hellerstein: I
don't concede that what's in the executive order is
implicated anymore. So there is the Constitutional right
to choose counsel.
AUSA: They are accused of using plundered resource - not
to pay their defense?
Judge: Isn't that a matter for VZ?
Judge Hellerstein: Does
the court have any role, in the decision to give a
specific license or not? The abuses in Venezuela, we
corrected that.
AUSA: They have a right to defend themselves with funds
that are lawfully available to them. Not those of a third
party
AUSA: The Government
does not concede that these two defendants do not have
funds. Since 2019 no Venezuela Government funds have been
available to anyone in the US. Nicolas Madura has been
under US charges since 2020
AUSA: In other cases in
this District, CJA has represented defendants accused of
similar crimes
AUSA: It is our
understanding that Federal Defenders are conflicted out
[representing another defendant in this overall 2011
indictment] So, CJA.
Judge Hellerstein: Tell me about the availability of other
funds.
AUSA: You could deny the motion now
AUSA: A trip to
Venezuela has been approved by OFAC.
Judge Hellerstein: After how long a wait?
AUSA: I do not know. But they are now allowed.
Judge: That is potential interference.
AUSA: The Sixth Amendment must be flexible
AUSA: In Bin Laden, the
judge found that government could require a security
clearance. And Judge Preska ruled the same in her case.
Judge: Tell me about other funds.
AUSA: We do not have the information. The Court should not
hold a hearing, and should deny this
AUSA: All of the cases
cited in this context are domestic cases. The judge can
look at an account at JPMorgan. Here, the accounts are
outside of the US - an area the courts typically defer to
the Federal government.
Judge Hellerstein: Funds could be forfeitable
Judge Hellerstein: If I
were to rule that this case is substantially different,
how would I implement that rule?
AUSA: You'd distinguish the Stein case and say, there is a
justified reason why the US took action here. There is no
expectation of these funds in US
Judge Hellerstein: Can
I order OFAC to give a specific license to release the
funds?
AUSA: No. The sanctions can be changed in a lawsuit under
the APA. That is a separate proceeding.
Judge: This is an issue about a specific license.
Judge Hellerstein: Can
I order OFAC to give a specific license?
AUSA: I do not believe you have the authority as part of
this case.
Judge: What about applying Monsanto's principles?
AUSA: You'd need additional fact-finding about their
resources
AUSA: They have said
they would fill out financial affidavits...
Judge Hellerstein: We are going in circles. Mr. Pollack,
what remedy?
Pollack: We have asked for dismissal.
Judge: I am not going to dismiss the case.
Maduro's (current)
lawyer Pollack: In Stein, there was the Thompson memo-
Judge Hellerstein: Good point. Anything that interferes
with the defense... I think I have your point.
Pollack: It's been reported that Venezuela has made $18
billion since this case began
Judge Hellerstein: I'm
not holding any hearings or fact finding. I think I have
this. Sit down. If I find that in this case a specific
license was arbitrarily withheld and the government does
not comply, you could raise dismissal. For now, it's too
serious
Judge Hellerstein: You
want to quit the case? I would certainly allow that.
Defense by CJA or Federal Defender is adequate.
Pollack: In this case there is an interference with Fifth
and Sixth Amendment rights. There is still the prospect
the license may issue
Judge Hellerstein:
Decision will be reserved [that is, come out later - Inner
City Press will be on alert for it and will report it on
this platform
Judge Hellerstein: Now,
the protective order. It must be redrawn - and speedily,
to move this case ahead. Next, there was to be a report by
the Government on production under Rule 16.
AUSA: The Government has begun producing Rule 16,
attorney's eyes only
AUSA: There are four
un-apprehended co-defendants here - they should not see
this discovery. That's paragraph 13.
Maduro's Pollack: We object to that. We need to exchange
info with those who have a common interest.
Judge: I take your point
Maduro's Pollack: We
want to be able to talk with those individuals. We'll
submit language.
Donnolly: On behalf of Ms. Flores Maduro, the health
condition of the First Lady
Judge: There are no titles to be used this court
Donnolly: Flores Maduro. Echocardiogram
AUSA: Please set to
date for us to come back
Judge Hellerstein: I'll set it in my opinion if necessary.
Time is excluded because the motion is pending. OK folks
thank you very much. I'll get this out as quickly as I
can. But the case is unique and it may take time.
Inner City Press will
stay on alert and report it - for now analysis on X for
Subscribers here
and Substack here
