Exclusive: SDNY Judge Koeltl Orders Press Out Of Criminal Presentment With Arabic Interpreter Spy Vs Spy

By Matthew Russell Lee, Exclusive

SDNY COURTHOUSE, August 7 – A criminal presentation with Arabic interpreter was set for August 7 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. 

  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. 

  Nowhere on the electronic board in the SDNY lobby at 500 Pearl Street was any proceeding before Judge Schofield at that time listed. Nor in the day's PACER calendar.

 Inner City Press will have more on this - see also @InnerCityPress and the new @SDNYLIVE.

As US Seeks To Seal Sentencing of Defendant Who Pled Guilty In 2005 Judge Says Put It In Writing

By Matthew Russell Lee, Exclusive; Video,pics

SDNY COURTHOUSE, July 26 – A man who pleaded guilty to narcotics charges back in June 2005 was belatedly set to be sentenced on 26 July 2019 but then asked that it be delayed three weeks and sealed, in a joint request with the U.S. Attorney for the Southern District of New York. Inner City Press was present; Circuit Judge Richard J. Sullivan corrected told Assistant US Attorney Nicholas Chiuchiolo that he should make his request to seal in writing.

  But apparently the government's request to seal will itself be sealed. How then can the Press or public address whatever arguments the government may make?

   Because the still undisclosed argument seems to be that the individual to be sentences after all this time might be at risk, Inner City Press is choosing not to disclose his name at this time. But it should have an opportunity to be heard on any possible sealing of the publicly announced sentencing which it went to attend and cover and was then pulled back.

   Tellingly, the sentencing submissions by the government due July 11 and by the Defendants due July 18 were not even listed in the docket as sealed documents. It is as if they were never filed. This should not occur with whatever is filed by Judge Sullivan's August 16 deadline for requests to seal.

  The case was initially assigned to then-Judge Scheindlin. It appears that Judge Sullivan to whom it was assigned, and who asked for an update, discovered that it was simply pending. Would the defendant ever have been sentenced? This and the decision not to allow the government to seek sealing at a fast whispered sidebar are much to Judge Sullivan's credit.

 Inner City Press now understands that because in the Department of Justice a US Attorney's office can only seek sealing with the approval of the Attorney General, the practices has been to simply hold the session and hope, usually correctly, that no press would come.

 Now in 2019 that the Press goes, the first move to was move the proceedings to the robing room. Then to simply order the Press to leave. Then to do so after a whispered sidebar. Now this - in context, progress. But what about the opportunity to be heard? Watch this site.

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. 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.

  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. 

  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. 

 On June 18 Inner City Press requested 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.").  

 Inner City Press is pursuing this because it is a precedent and trend. On June 17 when SDNY 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.

  Nowhere 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.