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Michael Cohen Ordered Released By SDNY Judge Hellerstein With Condition 1 Redone

By Matthew Russell Lee

SDNY COURTHOUSE, July 23 – After Michael Cohen received a three year sentence in the US District Court for the Southern District of New York, then was released to home confinement by the U.S. Bureau of Prisons - then remanded to Otisville. On that there was a hearing by SDNY Judge Alvin K. Hellerstein on July 23, leading to Cohen's re-release. Inner City Press live tweeted

Judge Hellerstein, to AUSA: Once Mr. Cohen questioned  conditions, you took it higher but never responded, correct?

AUSA: Well, he also questioned the location monitoring, saying that's only for more violent defendants.

Judge Hellerstein: But you never negotiated

AUSA: Mr Cohen was viewed as combative. So BOP decided-- Court Reporter: Sorry, I got cut off and didn't hear what AUSA Rovner said, after violent.... Judge Hellerstein: "Prisoners."

AUSA: BOP is not required to given him a chance to negotiate, in terms of home confinement. Judge Hellerstein: This was an attorney's attempt to negotiate an agreement. [Inner City Press: Are day to day defendants here in SDNY given the chance to "negotiate"?

Hellerstein: He was on furlough. He was allowed to stay outside. Then the New York Post article comes out, and the BOP learns he's writing a book, then this. It's retaliation. [In Pakula Declaration, Para 17a: "Cohen asked [me to] say hello to 'Mr Barr,'" the AG]

AUSA: This was drafted in May for another high profile inmate...  Judge Hellerstein: What was the purpose of asking for no social media? I've never seen such a clause, in 21 years as a judge. Have you? AUSA: I've never seen a Federal Location Monitoring agreement

AUSA Thomas McKay: If I may-- Judge Hellerstein: Can Ms. Rovner not answer my questions? One person speaks per side.

AUSA Rovner: Mr Pakula was in a working group for Federal Location Monitoring, this had been approved for high profile inmates 

Cohen's lawyer E. Danya Perry: He should be able to write his book. Judge Hellerstein: If I grant this injunction against retaliation, he would still be a prisoner in his home. He shouldn't be able to hold a press conference there. He could post on social media

 Perry: He wants to edit and publish the book. He wants to work, subject to the approval of the BOP, as appropriate. He should be permitted to post in social media. He obviously has something to say of social importance.

 Danya Perry: He wanted to know the contours of the pre-approval of religious practices. Does a bris count? Can he visit his rabbi? Perhaps he was being over-lawyerly. Judge Hellerstein: So he agrees to conditions 2-8. How should Number One be modified?

Judge Hellerstein: Ms Rovner, could you negotiate a new Condition One? AUSA: I'd like a few days. Judge Hellerstein: How long should Mr Cohen be in jail? If I find this retaliatory... AUSA Rovner: He's in quarantine right now. Perry: He'll be picked up by his son.

 Judge Hellerstein: I think that's reasonable. He'll continue his quarantine at home. He'd be released tomorrow, after a test today. AUSA Rovner: I think that's reasonable, if your Honor is inclined to grant the injunction.

Perry: He's in solitary. Judge Hellerstein: He can survive one more day. He should be released by 2 pm tomorrow to his son. Does his wife need to sign anything? No.

Judge Hellerstein: I find it was retaliatory. He is released, with Condition 1 to be renegotiated

Earlier he had been spotted dining al fresco near Park Avenue at Le Bilboquet (h/t NYP).

  So will he be remanded to jail, as was requested for example for one of Tekashi #6ix9ine's co-defendants Kintea McKinzie a/k/a Kooda B (whose lawyer who advised a guilty plea then dropped him citing a conflict of interest still sealed despite Inner City Press opposition)?

  The case is US v. Cohen, 18-cr-602 and there is nothing in the docket since March, 2020. Inner City Press is monitoring it. Watch this site.

On February 7, 2019 Judge William H. Pauley III issued an order on how much information gathered during the investigation should be made public.

Now on July 17, Judge Pauley has denied the government's attempt to withhold, and ordered that it be filed on the public docket on July 18 at 11 am - an hour and a half after fellow SDNY Judge Richard M. Berman is set to issue his Jeffrey Epstein bond decision three stories below. From Judge Pauley's July 17 order: " On July 15, 2019, the Government submitted a status report and proposed redactions to the Materials ex parte and under seal. The Government now represents that it has concluded the aspects of its investigation that justified the continued sealing of the portions of the Materials relating to Cohen’s campaign finance violations. Although the Government agrees that the majority of the campaign finance portions of the Materials may be unsealed, it requests limited redactions to those portions to protect third-party privacy interests.  After reviewing the Government’s status report and proposed redactions, this Court denies the Government’s request. In particular—and in contrast to the private nature of Cohen’s business transactions—the weighty public ramifications of the conduct described in the campaign finance portions warrant disclosure. See United States v. Amodeo, 71 F.3d 1044, 1051 (2d Cir. 1995) (explaining that “financial records of a wholly owned business, family affairs, illnesses, embarrassing conduct with no public ramifications, and similar matters will weigh more heavily against access than conduct affecting a substantial portion of the public”). Moreover, the involvement of most of the relevant third-party actors is now public knowledge, undercutting the need for continued secrecy. See United States v. Basciano, 2010 WL 1685810, at *4 (E.D.N.Y. Apr. 23, 2010) (“Shielding third parties from unwanted attention arising from an issue that is already public knowledge is not a sufficiently compelling reason to justify withholding judicial documents from public scrutiny.”). On balance, the “strong presumption of public access” to search warrants and search warrant materials under the common law far outweighs the weakened privacy interests at play here. See Cohen, 366 F. Supp. 3d at 621-22 (collecting cases).  3  The campaign finance violations discussed in the Materials are a matter of national importance. Now that the Government’s investigation into those violations has concluded, it is time that every American has an opportunity to scrutinize the Materials. Indeed, the common law right of access—a right so enshrined in our identity that it “predate[s] even the Constitution itself”—derives from the public’s right to “learn of, monitor, and respond to the actions of their representatives and representative institutions.” United States v. Erie Cty., 763 F.3d 235, 238-39 (2d Cir. 2014).  Accordingly, the Government is directed to file the July 15, 2019 status report and the Materials on the public docket on July 18, 2019 at 11:00 a.m." Watch this site.

On February 20, Judge Pauley has granted an order pushing back Cohen's date of surrender to prison from March 6 to May 6, on the basis of a "more fulsome letter" submitted by his lawyers on February 12 - under seal.

  While much of the interest is in Cohen and, behind him, President Donald Trump, Pauley's order addresses the need for public oversight of Federal authorities including judges. From the SDNY decision in U.S. v. Cohen, 18-cr-00602: "the presumption of access is at its core tethered to the need for public monitoring of the federal courts and their exercise of judicial power. Cf. SEC v. Van Waeyenberghe, 990 F.2d 845, 847 (5th Cir. 1993) (explaining that “[t]he public’s right to information does not protect the same interests that the right of access is designed to protect”). As the Second Circuit explained, Monitoring both provides judges with critical views of their work and deters arbitrary judicial behavior. Without monitoring, moreover, the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access to testimony and documents that are used in the performance of Article III functions. Amodeo II, 71 F.3d at 1050." While a fine basis, this would militate not only for the release of search warrant records but more transparency and accessibilty day to day in the courts, something lacking even the day before in the presentment of Afghan national Haji Abdul Sattar Barakzai a/k/a Manaf for allegedly supporting the Taliban with heroin imports and sales, click here for that.

   Judge Pauley's February 7 order provides, "The Government is directed to submit a sealed, ex parte copy of the Materials by February 28, 2019 with proposed redactions in highlights consistent with this Opinion & Order. After reviewing the proposed redactions, this Court will direct the Government to file the redacted Materials on the public docket in this action."

   Previously from outside the Court in the Cohen case on December 12 surrounded by a sea of cameras and tripods, Inner City Press live-streamed: see Periscope broadcasts here and here. A week before that in Courtroom 12A there was a guilty verdict in the UN bribery trial...

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