By Matthew Russell Lee, Patreon Maxwell book
SDNY COURTHOUSE, April 8 – The lead defendant in a criminal case alleging gang extortion in the field of clean-up services to properties damaged by fire asserted his Speedy Trial Act rights.
On September 9, 2022, U.S. District Court for the Southern District of New York Judge Jed S. Rakoff held an in-person arraignment and detention or bond proceeding, with the defendant's family and supporters filling half of the courtroom gallery. Inner City Press was there.
On the request to move up the scheduled May 2023 trial to October, Judge Rakoff said he will speak with Judge Analisa Torres about changing the schedule of her US v. Tim Shea (We Build the Wall) trial. We'll see.
On detention or release, the Assistant US Attorney recited from audio recordings of threatens, saying "N-word, I'm gonna kill you."
The defense lawyer, retained from Staten Island, pointed to those in the gallery and called the threats hyperbole. Judge Rakoff said the defendant clearly had supporters, but was a danger to the community. He was ordered detained.
Afterward by the elevators, supporters said of the prosecutors after they left in a separate elevator, "They lie."
Jump cut to March 27, 2023, when Judge Rakoff convened a Curcio hearing on the lead defendant. In short order he ruled, there is no conflict, and adjourned the proceeding. Ten days prior, Judge Rakoff had denied this request to suppress the forensic copy of his phone, taken after he was denied entry into Jamaica and was found with $10,000 upon his return.
Back on September 13, Judge Rakoff held a proceeding with co-defendants. The lead defendant Jatiek Smith applied to move his trial from October 17 to November 28 was granted, and three co-defendants were allowed to join him for trial beginning that date, one with a new lawyer. The others remain for trial on "5-1-22," which we take to mean May 1, 2023.
On April 27, Jatiek Smith appeared before Judge Rakoff, seeking to go pro se. His CJA lawyer, it was said on the record, collapsed in the subway; Inner City Press is voluntarily not report further medical details.
Jatiek Smith said he is tired of waiting for lawyers; he said, "You view me as an animal, so I'll just do it myself."
Judge Rakoff pointed out that the first CJA counsel's sickness was not his fault.
Then Jatiek Smith asked for the courtroom to be cleared to speak about his experience with his lawyers. Inner City Press did not contest the sealing; it stood by the elevators with six AUSAs and, separately, supporters of Smith. When summoned back in, it was put on the record that Smith will communicate by 5 pm on May 1 if he wants to go pro se - in which case trial would start May 8 or 15 -- or continue with another CJA lawyer, or two, on August 14, moved up in the sealed session from September 19.
It emerged that 3500 material and other discovery cannot be shared with Smith on the same timeline as other defendants, which would impact his ability - and Constitutional right - to represent himself. It was unclear how or if this was addressed in the sealed session.
Thing became clearer on May 1, when the trial date (and representation) were set: "ORDER as to (22-Cr-352-1) Jatiek Smith. On 4/27/23, the Court held an in-person conference with Jatiek Smith, his then-primary counsel Thomas Nooter and co-counsel Jill Shellow, and prospective counsel Andrew Patel, as well as counsel for the Government. See 4/27/23 Hr'g Tr. As discussed further on the record during that proceeding, severe and unexpected medical setbacks that had very recently arisen affecting Mr. Nooter's health meant that Mr. Nooter was no longer able to try this case... following an on-the-record (but sealed) colloquy regarding the risks of going prose, Mr. Smith asked for some time to further consider the issue. He has since written the Court (in a letter that has been docketed separately, see dkt. 211) stating his preference to remain represented by Ms. Shellow (as primary counsel) and Mr. Patel (as co-counsel) and proceed with an August 14 trial date."
On July 11, the US Attorney's Office asked for at least 60 months for Hasim Smith.
On July 19, Inner City Press went to the proceeding for Jatiek Smith to fire his lawyers and go pro se. Judge Rakoff ordered everyone out of the courtroom except outgoing counsel and two associates in the courtroom gallery.
After more than half an hour, the press and public were allowed back in. Judge Rakoff said he had had a cordial talk with Smith and that he would be appointing now counsel, to meet with Smith by July 24. A week after that, Smith is to write in whether he wanted to keep these new counsel and see his trial pushed back, or go forward pro se with the trial starting August 16.
Docketed on July 27 was Jatiek Smith's letter from the MDC, that he will take CJA counsel and see his trial delayed.
On July 28 his brother Hasim Smith was up for sentencing, and got 30 months. Inner City Press was there, thread:
Inner City Press noticed the late - today - defense sentencing submission
Defense lawyer says he was late because his client is being "sentenced for things he didn't do."
Judge Rakoff thunders, You brought this on yourself.
Hasim Smith says Parole recommended he go to work in his brother's company, "chasing fires at night... I did not assault anyone."
Judge Rakoff: This defendant is articulate, even eloquent. I sentence him to 30 months.
On August 16, 2023 a pre-trial conference for Jatiek Smith was on the schedule for 11:30 am. Inner City Press went but found the courtroom door locked. A woman by the elevators with a young child also asked why it was locked.
Hours later into the docket went a letter from the prosecutors: "this morning, due to reports of the defendant's noncompliance with the U.S. Marshals at the courthouse, the Court adjourned the conference until September 6, 2023."
On September 25 Judge Rakoff docketed this laptop access order - to be contrasted with that, for example, Sam Bankman-Fried's lawyer continue to demand: "ORDER as to Jatiek Smith. The trial of Jatiek Smith was previously scheduled to start on August 14, 2023. By Order dated May 1, 2023, the Court found that numerous security-necessitated lockdowns in the MDC were preventing Mr. Smith from having access to a computer to meaningfully review his discovery and adequately prepare for trial, and the Court accordingly directed that Mr. Smith be provided access to a computer notwithstanding the lockdowns. See Dkt.214. The trial of Mr. Smith has since been rescheduled and will now commence on November 27, 2023. Accordingly, the Court's May 1, 2023, electronic access order (Dkt. 214) is hereby vacated and the following Order substituted. It is hereby ordered, on consent of the parties, that, regardless of lockdowns in the facility, MDC shall permit Mr. Smith to have access to a computer to prepare for trial for no fewer than seven hours per day every day starting on November 6, 2023 and continuing until November 27, 2023, and after the trial begins to have access to a computer for no fewer three hours per day on days when Mr. Smith's presence is required at the courthouse and no fewer than seven hours per day on days when Mr. Smith's presence at the courthouse is not required. (Signed by Judge Jed S. Rakoff on 9/25/2023)." Watch this site.
Then one of Jatiek Smith's co-defendants was sentenced, with a medical facility recommended: "as to Kaheen Small (4), Count(s) 1, Dismissed; Pleaded guilty to Count(s) 2, Imprisonment for a total term of Twenty Four (24) Months. Supervised release for a term of Two Years. The court makes the following recommendations to the Bureau of Prisons: Incarceration in a Chronic Care 3 Facility such as FCI Butner Low, Butner, North Carolina or FMC Devens Low, Ayer, Massachusetts. The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons before 2pm on 11/28/2023. Special Assessment of $100 which is due immediately. (Signed by Judge Jed S. Rakoff on 9/26/2023)."
On October 10, Judge Rakoff docketed: "ORDER as to Jatiek Smith: The Court has received two prose filings from defendant Jatiek Smith, dated September 28, 2023, and October 6, 2023. Mr. Smith, although offered the opportunity to proceed prose, has chosen to be represented by appointed counsel, Jonathan P. Buza. Accordingly, the Court has warned Mr. Smith that such prose filings are not permitted and all applications must be made through his counsel. As a courtesy to Mr. Smith, the Court will forward copies of his submissions to his counsel so that Mr. Buza is apprised of these improper filings. (Signed by Judge Jed S. Rakoff on 10/10/2023)." And he set a pre trial conference for October 23 at 11 am.
Inner City Press went, and found the Assistant US Attorney's waiting out in the hall. Later, it went in as Judge Rakoff authorized a paralegal to act as Jatiek Smith messenger, but not to provide any legal advice. Then "Defendant's motion to proceed for trial pro se and have standby CJA counsel appointed granted after a Faretta hearing proceeds. The trail date remains 11/27/2023."
On November 3, Judge Rakoff docketed that Smith may be shackled for trial, for anger management issues - so a bench trial is being briefed.
On November 15, of the SDNY prosecutors' objection, a bench trial was ordered: "MEMORANDUM AND ORDER as to Jatiek Smith. The Court remains mystified why the Government has refused to consent to a bench trial in this case. It cannot be that the Government has a policy of never consenting to criminal bench trials; indeed, this judge has in recent years conducted such trials with the Government's consent,7 as have his colleagues. The Court is not yet forced to the conclusion that the Government simply wants to parade Mr. Smith, with all his troublesome tendencies, in front of a jury, knowing it will prejudice him and make conviction more likely. But even if this is not the case, the Court finds the Government's unexplained insistence upon a jury trial in this case both striking and troubling. See generally United States v. Allen, 644 F. Supp. 2d 422, 431 (S.D.N.Y. 2009) (noting the "special role" prosecutors have in our system of justice "not solely to advocate for the guilt of the defendant" but also to seek "truth and fairness"). In any case, it is the Court's duty to guarantee Mr. Smith a fair trial, and thus, for the forgoing reasons, the defendant's request for a bench trial is hereby granted, the Government's objection is overruled, the defendant's latest request for an adjournment is denied, and the trial will go forward, as scheduled, beginning on November 27, 2023 as a bench trial."
Inner City Press went on November 27. Smith pro se cross examined an agent about the taking of his phone, and what the agent called a "ruckus." Judge Rakoff noted that he had previously ruled on the phone, albeit on a motion by one of Smith's prior counsel.
On November 28, cooperating witness Jackson described his work for First Response, running to fire sites to sign up the homeowner, then violence against competitors, including going to AES' warehouse in Ozone Park and assaulting the company's workers. Exhibits, including video of punches thrown in through a car window, were offered. No objection, Smith said. At one point he objected to a line of questioning as irrelevant to the RICO charges, but Judge Rakoff overruled. The trial continues.
On November 29, Smith cross examined Jackson about his work for EFS, and threats by other chasers. The AUSA objected, calling it outside the time frame of the conspiracy. Jackson was deadpan, as he explained this own threats to Carl Walsh.
On November 30, the re-direct of Jackson involved an audio of Jatiek Smith predicted the level of charges for a beat down, adding "none of us will escape the conspiracy." Then the US put on a Staten Island police officer, but Smith effectively objected to hearsay about a lost ID. Then another cooperator, who said he got punched in the face.
On December 4, with notably fewer people in the courtroom, subpoenaed victims testified. Peter Rafferty testified about showing up to a fire scene with First Response and being gripped, hard, from behind while his employer was being yelled at by First Response.
Then Benjamin Vargas, owner of a ServPro franchise on the Upper West Side, described being told to pay $1000, then $2000, a week in order to be let in to "the rotation" of fires by Smith. He described the raising of the price over a lunch at Peter Luger's steakhouse, and threats to woman and children.
On December 5 on re-direct, Vargas said clearly, he only joined the "rotation" because of the threats to his family, and that there was no way to make money in the rotation. Records of payments from Vargas to Smith, $1000 then $2000, were shown (though not on the video monitor facing the courtroom gallery).
The defense Rule 29 motion was denied.
On December 6 Jatiek Smith was on the stand, being questioned by his standby counsel. The AUSA repeatedly objected, mostly successfully, to hearsay. But Smith got his story out - he had been the first one threatened by a gun or grip at a fire scene, and had gripped up after that. Alongside the Peter Luger's meeting with Vargas, he had another meeting. And when asked to name a person who told him something, Smith declined, saying he had to live in jail. So what was said, was not admitted in to evidence.
On December 7, Jatiek Smith was being cross examined by the AUSA. For ten minutes the courtroom was ordered sealed; there was discussion in the hall. While the evidence will wrap up on December 11, then there will be briefing as closing arguments.
Back inside the courtroom, the AUSA again played the audio of Smith saying "the only thing none of us will escape is the conspiracy." Judge Rakoff stopped and asked Smith about it.
The AUSA asked Smith about calling Eddie a coward, but saying he didn't look afraid. Smith said Eddie didn't want to look like a coward. When asked if he was scared when they went to the AES warehouse, Smith said he didn't know how to answer that.
On December 11, another fire mitigation veteran testified by video, questioned by Jatiek Smith and Judge Rakoff. He acknowledged that he had not been threatened by Smith, and praised him for his ideas. Given the video's audio, it was not always possible to hear what his lawyer beside him was saying. He was the last witness - now a briefing period, and perhaps more.
On December 12, Judge Rakoff partially granted Smith's motion, on evidence tampering: "ORDER as to Jatiek Smith. Following conclusion yesterday of the taking of evidence in the bench trial of this criminal case, defendant Jatiek Smith timely moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. Count I of the indictment charges Smith with racketeering conspiracy in violation of 18 U.S.C. § 1962(d) and Count II charges Smith with extortion conspiracy in violation of 18 U.S.C. § 1951. In support of Count I, the Government alleges the conspirators agreed to engage in a variety of predicate criminal acts, including, inter alia, evidence tampering in violation of 18 U.S.C. § 1512(c)(1), which makes it a crime to "corruptly... alter[], destroy[], mutilate[], or conceal[] a record, document, or other object, or attempt[] to do so, with the intent to impair the object's integrity or availability for use in an official proceeding." At the close of trial, the only evidence the Government had presented to support the predicate act of conspiracy to violate 18 U.S.C. § 1512(c)(1) was the alleged attempt by Smith to break one of his two cellphones when confronted by an FBI Agent with a warrant for its production. (Smith later turned over the phone). For the reasons already largely stated on the record, see Dec. 11, 2023, Trial Tr., the Court concludes that no rational trier of fact could find beyond a reasonable doubt that the alleged attempt to break the phone (which Smith denies) was pursuant to an agreement between Mr. Smith and his alleged co-conspirators to engage in conduct of a kind that would constitute a violation of 18 U.S.C. § 1512(c)(1). See United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003). Accordingly, with respect to the alleged predicate act of conspiring to violate 18 U.S.C. § 1512(c)(1), the defendant's motion pursuant to Federal Rule of Criminal Procedure 29 is hereby granted. In all other respects, the defendant's motion is hereby denied. (Signed by Judge Jed S. Rakoff on 12/12/2023)."
On January 9, 2024, Smith's standby counsel submitted a closing argument including that the court should not credit Benny Vargas, zeroing in on inconsistencies on when and why he moved his wife and family to Florida and back.
On February 14, 2024, Judge Rakoff found Jatiek Smith guiltys of Counts 1 and 2, concluding that "the Court concludes that Smith is guilty of participating in a RICO conspiracy to commit extortion and fraud, but not obstruction."
On March 5, stand-by counsel conveyed to Judge Rakoff points from Jatiek Smith in the SHU without access to the law library, nor to his family: no pens in SHU so "BP 8, 9, 10 etc" rejected. Walls not cleaned in Z03-2 Cell, no grooming equipment, "mail is not being sent out by staff."
On April 1, stand-by counsel returned and asked to be appointed sentencing counsel - and noted that Jatiek Smith wants more than five hours of law library per week, to preparing for sentencing and appeal and for his Section 2231 petition in EDNY in connection with the BOP's "decision to strip him of social visits for a period of three years."
Docketed on April 8, a handwritten letter from Jatiek Smith, asking Judge Rakoff to contact MDC where he says "my medication have still not been refilled, Medical has still not seen me. If I start kicking the door and yelling then I am an animal. And get more time in the SHU, fed a bag meal, placed in paper clothing to freeze, shackled to a bed by my arms and legs. Please help me in this matter."
We hope to hear more from the defendant - and from stand-by counsel.
Watch this site.
The overall case is US v. Smith, et al., 22-cr-352 (Rakoff)
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