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By Matthew Russell Lee, Exclusive, Patreon
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SDNY COURTHOUSE, Sept 28 – When the targeting and arrest of non-citizens in and around U.S. courthouses was challenged under the First, Fifth and Sixth Amendments to the U.S. Constitution, the U.S. Attorney for the Southern District of New York has responded that it is not really a policy, that there should be no discovery because the motion to dismiss it will make is so strong.

The case, Doe v. ICE, was filed on September 25, 2019. The initial conference was held before SDNY Judge Alison J. Nathan on November 1 starting at 10 am. Inner City Press live-tweeted it, below.

 Now on September 28, 2020, this from Judge Nathan denying the defendants' motions to dismiss on all by Sixth Amendment grounds: "The Court rejects out of hand Defendants’ suggestion that Plaintiffs’ First Amendment claim fails because non-citizens unlawfully present in the United States do not have any First Amendment rights. See Dkt. No. 64 at 20–21. As Defendants themselves concede, there is no authority, binding on this Court, that stands for the proposition “that nonresident aliens do not fall within the ambit of ‘the people’ for First Amendment protection,” see Dkt. No. 94 at 24:9– 12, and the Court is not prepared to so conclude as a matter of first impression on the authority offered by Defendants.

Several cases Defendants rely on to support this proposition are distinguishable in that they arise in the context of extraterritorial application of the First Amendment. See United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990); Hoffman v. Bailey, 996 F. Supp. 2d 477, 488 (E.D. La. 2014). And the Supreme Court case in which they place the most stock leaves open the possibility that non-citizens unlawfully present in the country do possess such rights. See United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (suggesting that “the people” in the First Amendment refers “to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community”); see also Washington, 2020 WL 1819837, at *13 (“[T]he Verdugo-Urquidez Court did not preclude unlawfully present aliens from asserting rights secured by the First Amendment.”). But even were Defendants correct, it would not be fatal to Plaintiffs’ right of access to the courts claim, because, as stated above, such a right also derives from the Fifth Amendment, which unequivocally applies to citizens and non-citizens alike. See Zadvydas, 533 U.S. at 693 (“[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”). Accordingly, the Court concludes that Plaintiffs have adequately alleged a right of access to the courts claim, regardless of whether such a claim arises under the First or Fifth Amendment." Inner City Press will continue to follow this.

From November 1, 2019: Judge Nathan: I think there's some difference between the schedule Judge Rakoff has you on than here... And there are different claims in that case.

Doe's lawyer Jonathan I. Blackman: We think we have quite a good chance of defeating the motion to dismiss.

Judge Nathan: You have not yet moved for preliminary injunctive relief. Do you intend to? Doe's lawyer: It depends on the timing. It's mostly a legal issue

Doe's lawyer Blackman: It's really about the courthouse arrest directive. What's happened, it's undisputed: a 17,000 percent increase in courthouse arrests since the directive came down

Doe's lawyer Blackman: Our view of the shape of the case is that discovery would be relatively limited. Document discovery should go forward despite the motion to dismiss.

 AUSA Rebecca R. Friedman: There is no reason for discovery to move forward because if Your Honor rules for us, discovery would be unnecessary. Judge Rakoff -- 

Judge Nathan: He has indicated a date he will rule by, and a tight schedule after that

 Judge Nathan: My inclination is to put you on the same schedule as you are in the Judge Rakoff case. What he does may not impact what I do... I haven't even seen the motion to dismiss yet.

 AUSA Friedman: We haven't seen any discovery request yet. Judge Nathan: If the case moves forward before Judge Rakoff, the government would bear much of the same work on discovery. AUSA: A delay is not burdensome on plaintiffs (!)

Judge Nathan: Just because the two cases have been deemed unrelated for one purpose doesn't mean there won't be overlap in factual discovery. Doe's Lawyer, Mr Blackman: That seems sensible.

Doe's lawyer Blackman: We would be happy with Judge Rakoff's schedule, it would make total sense. Judge Nathan: The government anticipate moving on standing, right? AUSA Friedman: That's right.

 Doe's Lawyer says Doe must have standing: he is afraid to go to Family Court for an order of protection when his partner is threatening to blow the whistle on him to ICE

Doe's lawyer Blackman: If this complaint does not survive in full, it will survive in some form.

AUSA Friedman: one of the claims is being brought only by organizations, not Doe. To the extent there are organizational standing issues, that claim would be [gone]

Doe's lawyer: Judge Rakoff has said he'll decide by December 3. And the government's brief is due that day... 

Judge Nathan: Judge Rakoff sometimes gives a bottom line decision, we'll just have to see...

 And Judge Nathan ruled: "Defendants' motion to dismiss is due December 2, 2019; Plaintiffs' opposition is due December 23, 2019; and Defendants' reply is due January 13, 2020. Oral argument on the motion to dismiss is hereby scheduled for February 12, 2020 at 2 p.m. The Court also adopts Plaintiffs' proposed case management plan, which will be entered separately. If the motion to dismiss pending in State of New York, et al. v. US. Immigration and Customs Enforcement, et al., l 9-cv-8876, is granted, Defendants may renew their motion to stay discovery in this case within three days of that grant."

And, "CIVIL CASE MANAGEMENT PLAN AND SCHEDULING ORDER: All parties do not consent to conducting all further proceedings before a United States Magistrate Judge, including motions and trial pursuant to 28 U.S.C. § 636(c). This case to not to be tried to a jury. Deposition due by 2/14/2020. Expert Deposition due by 2/28/2020. Fact Discovery due by 3/1/2020. Expert Discovery due by 2/28/2020. Case Management Conference set for 3/20/2020 at 03:00 PM before Judge Alison J. Nathan. SO ORDERED."

Meanwhile, on the morning of November 1 hours before the argument Inner City Press asked the United Nations, its Secretary General Antonio Guterres and others: "November 1-3: On SDNY Federal court here in the UN's (for now) host city, what are the comments and actions if any of Guterres and separately Melissa Fleming on the November 1 court proceeding Doe v ICE about arrests in and around courthouses?" Even by 5 pm November 1, no answer at all.

 Inner City Press will continue to cover these cases. And these:

  Racism in federal law enforcement in the Southern District of New York was alleged and argued on October 31, with five defendants in shackles and Inner City Press the only media in the SDNY courtroom of Judge Jed S. Rakoff.

    Judge Rakoff asked lead attorney Christopher Flood whether the racial disparities he and his colleague are alleging are, in fact, statistically significant.

   Passed to Judge Rakoff via his deputy was the declaration of Profession Crystal S. Yang asserting "the racial composition of targeted individuals in DEA reverse-sting stash house cases brought in the SDNY" for the past ten years: "46 operations targeted 179 individuals of whom zero are White, two are Asian and 177 are Latino or Black." This is followed by regression analysis.

     Assistant US Attorney Domenic Gentile, alone at the prosecutor's table, doggedly returned to these particular defendants wearing face masks, and having been recruited through the lead defendant, Flood's client.

    Judge Rakoff said it was interesting, but how was it relevant? He committed to issuing an order on Flood et al's discovery motion by November 12, if only in bottom-line form, in advance of a March 2020 trial. Inner City Press will continue to report on this case, and on these issues.

 To their credit, the other defense attorneys on the discovery motion include Jennifer Luo, Michael Tremonte, John Diaz, Stephanie Carvlin, Xavier Donaldson, Dawn Cardi, and the omnipresent Calvin Scholar.

  Google has sued the United States in response to a subpoena for e-mail accounts and it has asked to make its response under seal. Inner City Press first exclusively reported on Google's lawsuit on October 22, here. More on Patreon here.

     On October 31 Inner City Press was alone in the gallery of the courtroom of Judge John G. Koeltl of the U.S. District Court for the Southern District of New York when Google and three Assistant U.S. Attorneys including Matthew Podolsky.

    At first Judge Koeltl told Google's lawyer, at the podium to stop speaking and disclosing, saying, "I think we're done."

   Then as if on second thought - Judge Koeltl has previously ordered Inner City Press to leave his courtroom during the presentment of a John Doe detainee with an Arabic language interpreter, a case that apparently still remains entirely sealed - Judge Koeltl said, Some filings are sealed but the case docketed, it is public.   Indeed it is.

Since Inner City Press' exclusive real time tweet of the case caption on October 22, here, when it was assigned to SDNY Judge Paul A. Engelmayer - who ordered Inner City Press not to live tweet a sentencing in his courtroom in the Tekashi 6ix9ine proceeding it has live tweeted the trial of - now the case is before Judge Koetlt.

      As first filed, Google's lawyer Peter G. Neiman of Wilmer Cutler Pickering Hale and Dorr LLP described it as a "motion to vacate or modify nondisclosure order pursuant to 18 U.S.C. Section 2705(b) on First Amendment grounds."

     On October 29, Judge Koeltl granted Google's "Unopposed Motion to Seal," and wrote that "Google may file its reply brief, and the motion to seal the reply brief, under seal."   

  The October 31 proceeding, past 5 pm, was not listed on PACER nor on the board in the lobby of the SDNY courthouse at 500 Pearl Street. But Inner City Press showed up, and heard Google's lawyer say that U.S. Attorney Geoffrey L. Berman's ex parte submission does not satisfy the applicable standard.

      The AUSA took to the podium and cited without more a "very important interest," alluding to the Nebraska Press Association case while working or not opposing the withholding of information from Inner City Press. At the proceeding's abrupt end the genial court reporter went back into Judge Koeltl's robing room, presumably on the matter of sealing even this transcript. We'll have more on this. More on Patreon here.

Back on October 25 there was a Federal criminal proceeding publicly listed on PACER at 2:30 pm  in the courtroom of SDNY Judge Denise L. Cote.

Inner City Press went to cover it - and was immediately told to leave the courtroom. Then the door was locked.

     When US Assistant US Attorneys Maurene Comey and Christopher Clore exited some 20 minutes later, Inner City Press asked them if they knew the basis for excluding the Press. Ms. Comey shook her head.

   Inner City Press has since exclusively reported: Maurene Comey has only four cases before Judge Cote. On only one of the four is Christopher Clore her co-chair AUSA: the 20 defendant Bronx MacBallas case named from the initial and lead defendant, US v. Xavier Holman, 18-cr-41 (Cote).

  But Holman was already sentenced to 120 months. Keenan McFarland and Sean Jones also got 120 months. Navone Dozier got 84 month. Jafari Jones and Francisco Torres also got 84 months; Austin Morrishow got 60 months, described in a sentencing submission as "one of the gang's 'shooters.'"  So who's left?

  Not listed as "closed" are Bo Williams, 20 of 20, Deonte Morrison 15, Nathaniel Fludd 7 and Toshnelle Foster 2, who while not sentenced has a sentencing date in November.

 Of these, only Bo Williams does not have an appearance by defense lawyer, although Inner City Press on October 25 observed who his lawyer is.

Virtually every filing in 18-cr-41-DLC-20 from May through September 2019 is listed as "Sealed Document."

As Inner City Press has explained to judges, executive and prosecutors, it has full respect for any legitimate sealing and / or safety concern. But to simply order the Press out of a Federal courtroom without given a reason does not comply with the letter or spirit not only of case law but of the principles behind it. More on Patreon, here.

 And the US Attorney's Office, so solicitous to some, has not even responded to Press requests they put online their exhibits in the US v. Michael Jones case before Judge Koeltl, for example, a case where they seek 20 years against an emo rapper with bad luck with heroin, while allowing another in suburban Rockland County off on 27 months for the same conduct. Watch this site.

    Inner City Press had, as it exited as ordered without asking any questions in order not to be disruptive (or have its other access for reporting disrupted), asked Judge Cote's courtroom deputy what the basis of asking it to leave, without the on the record finding that are required by applicable Second Circuit Court of Appeals case law, was.

   The Deputy said, I'll ask the Judge if she wants to say. But the Deputy did not re-emerge, even after AUSA Comey left. To their credit, staff of the Office of the District Executive when informed arrived on the scene and, using their key, went into the abruptly locked courtroom.  

  Minutes later this explanation was given: the proceeding involved a cooperator. The AUSA had either not sought or had not obtained permission from "main Justice" in Washington to request the sealing of the courtroom.

    So the Judge, a former prosecutor as others have noted to Inner City Press - in fact, the first woman to serve as SDNY Criminal Division Chief, to her credit - had done it sua sponte. She called the lawyers to a sidebar moments after Inner City Press entered the courtroom, then emerged from the sidebar to order the courtroom sealed and the door locked.

   Inner City Press, in-house media in the SDNY working from front cubicle in the Press Room has suggested, to increase transparency, that such proceedings be sealed in advance, rather than on an ad hoc basis when the press walks into an open courtroom. That was an opporunity to be heard, in advance, would be possible. It is also advocating for more opportunities for real-time reporting from the SDNY, as recently on the #6ix9ine and Honduras trials and in 10 days on OneCoin / US v. Scott. The responses have largely been promising.

    The twist to the October 20 sealing of Judge Cote's courtroom was that it was partial:  it was not only the lawyers, court staff, and defendant and the two U.S. Marshals who remained inside. So it was a selective sealing. We hope to have more on this, reporting with all due respect, of course. No docket number. Watch this site.

On a case we can, we think, report on:

October 23 Inner City Press exclusive: Asa Saint Clair was questioned for wire fraud by the US authorities at 845 United Nations Plaza last month, for his involvement in a dubious cyber-currency called Igobit, issued through a UN-linked "inter-governmental organization" called the World Sports Alliance.

    Inner City Press has previously reported on the World Sports Alliance, including here and here and here, on Burundi.

    On October 23 Inner City Press covering the SDNY was the only media in the Magistrates Court when Asa Saint Clair was brought into the court in shackles. He was arrested in California trying to get on a plane to Madagascar by way of Paris. More on Patreon here.

   Despite telling the government he was making $50,000 a month, he was given a publicly funded Federal Defender lawyer, who argued he should be immediately released.

     Magistrate Judge Debra Freeman rejected the AUSA's request to limit his use of electronic devices, and like the US Attorney's Office made no connection to the UN itself.

    There is a pattern here: in the Ng Lap Seng case, so recently in the Second Circuit Court of Appeals, Ng went to jail but those he bribed in the UN remain free and in action. The same is true for Patrick Ho of CEFC China Energy, up to the level of Secretary General Antonio Guterres.

   Even in terms of fraudulent coins, Inner City Press has exposed and asked the UN in writing about the use of Guterres' image to sell coins by former UN ambassador of El Salvador Carlos Garcia.  He was shown in the Ng Lap Seng case to be helping with money laundering by Francis Lorenzo, still someone not sentenced by SDNY and its AUSAs Richenthal and Zolkind.

Nor did they ask on UN official Meena Sur, whom Inner City Press publicly exposed as linked to now SDNY-investigatived WSA, here.

And Garcia continued his coin scam with Guterres' image, and now WSA's Saint Clair is about to be bailed - even as his case remained hours later sealed.

 Inner City Press will continue on these cases. Watch this site.