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SDNY Judge Gardephe Postpones Sentencing For Tests For Pot Which He Calls Problematic

By Matthew Russell Lee

SDNY COURTHOUSE, August 19 – A man charged with bank fraud including exploiting an "account adjustment" loophole while depositing counterfeit checks in ATM machines appeared for sentencing on August 19 before U.S. District Court for the Southern District of New York Judge Paul G. Gardephe. But the sentencing was postponed for three months for Christian Whidbee, for him to show Judge Gardephe that he can and will live without daily smoking of pot.

  Judge Gardephe told Whidbee and his lawyer that he does not view marijuana as acceptable. He said that in his nine years as a prosecutor and now 11 as a judge, he has repeatedly seen substance abuse starting with marijuana, which he called "highly problematic." He said Whidbee had shown in the past three months that he can keep a job. Now he needs to show he can swear of marijuana. "If you do that, sentencing will be headed in a positive direction for you." This is a side of the federal District Court judge's docket not often reported on - Inner City Press will stay on it.

Back on August 8 in his otherwise empty courtroom hours before a US immigration bond hearing, after 5 pm Judge Gardephe read outloud a long decision which, at the end, granted the habeus corpus petition of detainee Jose Celan Padilla Raudales, citing a finding for Mr. Padilla under the Convention Against Torture.

   For a bond hearing set for 8:30 am on August 9, Judge Gardephe after 6 pm issued a short written order: "For the reasons stated in open court today, Petitioner’s habeas corpus petition is granted to the extent that it is hereby ORDERED that at any bond hearing for Petitioner – whether before an immigration judge or the Board of Immigration Appeals – the Government will be required to demonstrate – in order to justify Petitioner’s continued detention – that he is a danger to the community or a risk of flight, and that it will be required to prove danger or flight risk by clear and convincing evidence."

  The custody re-determination hearing, according to the notice filed by Bronx Defenders' Suchita Mathur, is at 8:30 am on August 9 at 201 Varick Street.

  Inner City Press was the only media in the SDNY courtroom of Judge Gardephe on August 8 and will endeavor to continue to follow this case, while having been denied access to a case across the street only the day before, in a process that should be subject to a similar challenge.

On August 7 without any citation to case law or due process a criminal presentation with Arabic interpreter  set for August 7 at 2:45 pm in the SDNY courtroom of Judge John G. Koeltl was suddenly sealed and Inner City Press ordered out. The contrast seems clear.

  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 corn rows 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.

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


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