SDNY Judge Preska Granted Request To Plead Guilty And Be Returned to El Salvador To See Ailing Father

By Matthew Russell Lee, Exclusive; Video,pics

SDNY COURTHOUSE, July 9 – A man from El Salvador came shackled into court on July 9 to plead guilty, waives his right to a pre-sentencing report and be sentenced with the hope of being deported as quickly as possible. The goal of Jose Adan Martinez was to get back to El Salvador and see his 99 year old father whose health is failing.
  
  U.S. District Court for the Southern District of New York Judge Loretta A. Preska obliged Mr. Martinez in this. Responding to a letter from Martinez' Federal Defender Sarah Baumgartel, Judge Preska scheduled a plea and then sentencing hearing back to back on July 9, and signed an order for the Marshals. Inner City Press, the only media in the courtroom, asked how quickly Mr. Martinez might make it back to El Salvador. The answer was it depends, on how frequently the U.S. transportation is arranged.

  At the end of these proceedings in US v. Martinez, 06-cr-807, Judge Preska said, "Mr. Lee, the sentencing for Connors Person will be July 17 at noon." Inner City Press thanked Judge Preska, while still seeking about a proceeding that got abruptly sealed at 10 am at least some information, that seemingly required by the Second Circuit Court of Appeals.

  Earlier on July 9 in a court proceeding that began as open, with U.S. Marshals, the defendants' family members and even legal interns present on July 9, Inner City Press was specifically directed to leave, leaving no media or member of the general public present.

  It took place before Judge 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. Inner City Press considered asking why, right there, but decided against it. It has recently been advised to not ask so many question, even as its question about a suddenly sealed June 17 sentencing by SDNY Judge Lorna Schofield remains unanswered, see below.

 Judge Preska's courtroom deputy followed Inner City Press out to the hall, then appeared to lock the courtroom door. No explanation was offered.

  The PACER terminal in the SDNY Press Room from which Inner City Press has been working for months 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. 

 For now Inner City Press notes that sentencing proceedings are presumptively open in the Second Circuit.  See United States v. Alcantara, 396 F.3d 189, 196 (2d Cir. 2005) ("There is little doubt that the First Amendment right of access extends to sentencing proceedings.").  

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.  See United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988).

  If the "finding" was at the sidebar, will that be made public? When? Watch this site.

Back on June 17 the sentencing of a defendant seeking time served, seemingly for cooperation with the government, was abruptly declared "sealed" by SDNY Judge Lorna G. Schofield on June 17. 

She said she was going to seal the transcript, but that once this reporter walked into her open courtroom 1106 in 40 Foley Square, she moved the entire proceeding into her robing room, closed to the Press and public. 

 Now on June 18 Inner City Press hasrequested the name and number of the case, and that all portions that do not need to be redacted or sealed be provided or placed in the docket, citing in support this its requests: again,sentencing proceedings are presumptively open in the Second Circuit.  See United States v. Alcantara, 396 F.3d 189, 196 (2d Cir. 2005) ("There is little doubt that the First Amendment right of access extends to sentencing proceedings.").  

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.  See United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988). United States v. Cojab specifically dealt with hearings (in that case, a pretrial hearing) conducted in the robing room.  

 Inner City Press is pursuing this because it is a precedent and trend. On June 18 affable SDNY Magistrate Judge Sarah Netburn declared a proceeding in Courtroom 5A sealed with "delayed docketing;" in her two days in the Magistrates Court this week not a single filing has been made available on PACER. There's more - watch this site.

On June 17 when Judge Schofield, her Courtroom Deputy James Street and the shackled defendant, Assistant US Attorneys and US Marshals emerged twenty minutes later, Judge Schofield said only, "We're adjourned." There was no disclosure of the outcome of the proceeding - as Inner City Press walked in, the defendant's lawyer was asking for time served." 

Then Judge Schofield said she wanted to "shake hands with our visitors" and proceeded to do just that with the two other people in the gallery. Inner City Press left.

  No one where on the electronic board in the SDNY lobby at 500 Pearl Street was any proceeding before Judge Schofield at that time list. Nor in the day's PACER calendar.

  So it is both a confidential sentencing, and a confidential case? 

Judge Schofield's Rules for Criminal Cases, ironically, provide that there is a presumption that all sentencing submissions are public, and that if anything is redacted only those pages with redactions can be withheld from the public docket. 

  But no such distinction is possible when an entire proceeding is moved into the judge's robing room barred to the press and public, with no notice or opportunity to be heard. Inner City Press will have more on this - see also @InnerCityPress and the new @SDNYLIVE.

In SDNY Sayoc Says He Felt Rushed Pleading Guilty Third Letter In The Mail No Curcio Like Tekashi 6ix9ine

By Matthew Russell Lee, Periscope, Photos

SDNY COURTHOUSE, April 15 – When Cesar Sayoc was led for a second time into the courtroom of Judge Jed Rakoff in the U.S. District Court for the Southern District of New York on April 15 his March 21 guilty plea to more than 60 criminal counts was in question. Less than an hour later it was again all systems go: no Curcio lawyer to consult with, no vacating of any of the March 21 guilty pleas, and sentencing now sent for August 5 at 2 pm. What happened? Periscope video here.

The U.S. Attorney's office began by arguing that in light of Sayoc's two letters - so far - to Judge Rakoff, perhaps the plea should be vacated and Curcio counsel assigned. But once Sayok said what was wanted - that he knew that at least property, in the form of mail boxes, could be damaged by his amateur explosives - the government was satisfied. There is a third letter in the mail but not yet received. Sayok's Federal Defenders lawyers said it might have to be redacted. Judge Rakoff asked Sayok if he wanted to consult with another lawyer, and Sayok said no. 

By contrast, in the recent SDNY case of Daniel Hernandez a/k/a/ Tekashi 6ix9ine, Curcio counsel was assigned despite the defendant insisting he was happy with his counsel. See Inner City Press story here. There, the possible conflict of interest was structural: his counsel Lance Lazzaro represented other co-defendants. But here Sayok sent his letter(s) without even sending copies to his assigned counsel. A Curcio counsel might slow things down. But what's the rush? That was exactly the phrase Sayok used on April 15, that he'd felt rushed. Inner City Press, present in Judge Rakoff's courtroom on both March 21 and April 15, will have more on this. 

  Sayok appeared on  March 21 to plead guilty to 65 counts his raspy voice was barely audible, even from the front row where Inner City Press sat. The problem was more than volume. On the key point of whether he intended for the bombs he sent to people ranging from Joe Biden to Kamala Harris to Tom Steyer to explode, Sayoc was unclear. Afterward some said he was "crazy like a fox," ready to make this argument at his sentencing on September 12. But Sayoc also asked Judge Rakoff if the government will give him a list of the property of his that they are taking, when that is fully covered in the plea agreement that Sayoc ostensibly read and understood. At one point Sayoc began to ask Judge Rakoff a question and his Federal Defender lawyers cut him off, "conferred" with him and the question went away. Perhaps this is to help him. But it does not seem unreasonable to ask, Is Sayoc competent? Especially when he is pleading, or has pled, guilty to charges involving life imprison plus ten years. Judge Rakoff, in fine form, made fun of the government's assertion of its power even after death. But again the nagging question: is Sayoc competent? Early in the proceeding he said a sentence that no one understood. Then he referred to AA. Then his voice trailed off. How will he be at sentencing? Inner City Press will be there - in the front row or closer. More on this to follow. The day before there was another, lower profile change of plea to guilty on wire fraud charges  before SDNY Judge George B. Daniels. But when it was time to allocute there was a problem, or at least a long pause. Defendant Evaldas Rimasauskas read a statement how he set up bank accounts in Latvia and Cyprus and got Victim-1 and Victim-2 to wire money into them. But then Judge Daniels asked, "Why did the victims wire the money?"
Rimasauskas conferred with his lawyer Paul D. Petrus, and with the interpreter. Finally they asked, Can you repeat the question? Judge Daniels did, including What were they promised? "I'm not 100% sure," Rimasauskas said. The government jumped in to say he was not charged with inducing, only with logistics. But he was described as being involved in false contracts to support transfers. Didn't he know what the Victims thought they were buying? The ritual of allocation had broken down. Afterward some said the indictment should have been read more closely. But shouldn't a defendant who is actually guilty of the charge being pled to be able to answer such a question? If not, why even hold these empty ceremonies? We'll have more on this - sentencing is set for July 24 at 10 am. The case is US v. Rimasauskas, 16 cr 841.

Another ceremony: back on March 18 when the marshals brought in another defendant, Ronald Johnson, he signed the change of plea. Then he it was time for him to allocute, he haltingly read out a generic statement written for him by his lawyer. That between January, no June, and October 2018 he "wittingly" sold firearms. Judge Crotty asked, Did your lawyer write your statement? Yes. Do you adopt it? No. No? Oh, yes. The guidelines suggested 97 to 121 months, but on the count pled to, the maximum if five years or sixty months. The case is US v. Johnson, 18 cr 907. Sentencing is set for June 12. Look for the straight five... 

In SDNY Allocution To Simple Assault On A Cruise Ship Is Sufficient With Threat Federal Defenders Prove

By Matthew Russell Lee

SDNY COURTHOUSE, April 2 – The Federal Defenders scored a big win in a misdemeanor proceeding that only Inner City Press attended and covered on April 2. They defeated the U.S. Attorney's Office which argued that the simple assault they agreed to on a dispute on a cruise ship required allocution to actual physical conflict. There was case law on the Federal Defenders' side, and a plea to making a threat on the cruise ship - in "international waters" -- was found sufficient. The case was United States v. Batista, 18 Cr. 730 (NRB). 

The Federal Defenders lawyer was Sabrina P. Shroff, whom Inner City Press has previously covered in the UN bribery cases of Patrick Ho (new Hong Kong documentary here), getting bail for Cheikh Gadio, and of Ng Lap Seng, representing hapless Jeff Yin. The issue in Batista was whether simple assault requires the defendant to "strike or choke." Ms. Shroff cited the US v Denis and US v Chestaro cases, and the matter was quickly disposed by Judge Naomi Reice Buchwald in her relatively small courtroom on the 21st floor of 500 Pearl Street. The question is why the U.S. Attorney's Office in this case had not researched basic case law - and whether the defendant Carlos Batista, Junior, from the Dominican Republic, must now be deported. We hope to have more on this.

Earlier on April 2, in 40 Foley: "I was a street drug dealer in from of my building in the Bronx," a defendant told U.S. District Court for the Southern District of New York Judge Paul A. Engelmayer on April 2. Defendant Gonzalez was pleading guilty to a lesser included charge, with a guideline sentence of between 120 and 150 months in jail. But he won't be sentenced until July 11 at 2:30 pm, after the Probation Department does its interview and issues a Pre Sentencing Report that will remain sealed until, somehow, Gonzalez appeals. We'll have more on this - there were no family members in the courtroom, no media other than Inner City Press. Less than hour earlier when Eldar Rakhamimov appeared for sentencing for inflating the number of Pepsi and Canada Dry bottles returned through his business in the SDNY courtroom of Judge Ronnie Abrams, he had many of his employees and family members with him. His lawyer Tony Mirvis pointed them out, arguing that if not sentenced to jail he could pay back the $700,000 restitution faster. But half of the debt is to the State of New York; recently Judge Abrams rejected just such has argument from a medical software company executive on tax fraud. Here, Judge Abrams went below the 37 to 46 month guideline sentence, to 15 months with two years of supervised released - the books of his recycling company will be open - and a $15,000 fine. Two of his employees were asked to take off their caps by the Court Security Officers. The prosecutor said, It would not be a bad thing if his company just fell apart. The case is US v. Eldar Rakhamimov,  18 – CR – 72 (RA).

The day before in a class action lawsuit against BHH's rodent repellers creeps toward trial or settlement, SDNY Judge William Pauley heard arguments and ruled on no fewer than 14 motions in limine. There were nine from the class action plaintiffs, mostly successful, and five from the defendant, most unsuccessful. 

During the three hours of argument, Judge Pauley said today is not the day to admit anonymous customer reviews from Amazon.com from the likes of "TaterSpud59" (whom he referred to as Tater Tot), and said that FTC press releases dubious about repellers will or would be admissible at trial, with apossible limiting instruction. 

There was discussion of experts including a Michigan State University protocol which Judge Pauley shot down, adding that after MSU's victory over Duke, he is not disposed toward them. Judge Pauley took more time listening to arguments than many other judges would, and said he said spent the rainy Sunday - on which Duke was eliminated from NCAA March Madness - to read all of the papers. The sense, after the mouse motion marathon, was that the plaintiffs are in the driver's seat, and that the case may settle. There is a mediation scheduled for April 9 before Hon. John S. Martin (Ret). But Inner City Press will be cover it and what happens in the SDNY either way. The case is Hart, et al. v. BHH, LLC d/b/a Bell + Howell, et al., 15-cv-04804; class counsel is Yitzchak Kopel  and BHH is now represented by Quinn Emanuel We were also at Judge Pauley's courtroom on the news there would be a proceeding in US v Genovese, a hedge fund fraud prosecution. But it was not there - once we left the courtroom and retrieved electronics, we were able to ask and learned Genovese was adjourned to April 10. We'll have more on this. Back on March 28 an insider trading action by the SEC was under heavy fire in SDNY courtroom of Judge Richard M. Berman. The SEC had in 2017 grand alleged that "Ariel Darvasi and Amir Waldman were in possession of material nonpublic information about the impending acquisition when they purchased Mobileye securities" just prior to its acquisition by Intel. But on March 28 the defendants' lawyers, moving for summary judgment, mocked the arguments. They said Waldman was "not a direct insider;" they said suspicious trades are not enough, mere contact with an insider is not enough. The SEC lawyer responded with tales of MobileEye's founders private jet flight to New York to nail down the Intel deal. Much of the argument came down to whether a response by Waldman during deposition, that he had been aware of the trip - "yes" - before the words, for the merger, were said, should go to a jury. The defendants insisted on their video. There was no other media in the court room but Inner City Press, still without its electronics. So what of general deterrence? What of transparency? In the SDNY there is no comprehensive calendar, and for now the Press that seeks to report on as much as possible is still restrained. We'll have more on this.