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Amid COVID in #6ix9ine Case Kooda B Lawyer Scolari Conflict Sealed By Judge

By Matthew Russell Lee, Patreon Thread Scope
BBC - Guardian UK - Honduras - Vulture

SDNY COURTHOUSE, June 8 – Daniel Hernandez a/k/a Tekashi 6ix9ine was sentenced to 24 months of total imprisonment on December 18 in a proceeding live tweeted by Inner City Press before U.S. District Court Judge Paul A. Engelmayer.

   6ix9ine was ordered released by an Order that at the US' request Judge Engelmayer withheld until 4 pm on April 2, analyzed on Patreon here, 2-minute podcast here.

  On May 8 #6ix9ine released and World Star released GOOBA, here. His proposed $250,000 grant to a child hunger organization was rejected by No Kid Hungry. Then Kooking 4 Kids said it wanted it.

 As if in a parallel universe Kintea McKenzie a/k/a Kooda B, who pled guilty then while on COVID-19 related release was filmed celebrating without social distance, on June 3 had his assigned Criminal Justice Act lawyer Lisa Scolari withdraw. Inner City Press covered and live tweeted the proceeding:

SDNY Judge Engelmayer is holding a proceeding, probably short, for Criminal Justice Act lawyer Lisa Scolari to withdraw as lawyer for Kintea McKenzie. Why? UNknown - she didn't put letter in docket, wants under seal.

  And on June 8, Judge Engelmayer issued these two orders: "ORDER as to Kintea McKenzie: At a conference held on June 3, 2020, the Court permitted Lisa Scolari, Esq., to withdraw as court-appointed counsel for defendant Kintea McKenzie, based on her representation to the Court that on or about May 15, 2020, she had become aware of circumstances that presented a conflict precluding her continued representation of Mr. McKenzie. The Court appointed Richard Rosenberg, Esq., as successor counsel. To assure itself that the nature of Ms. Scolari's conflict does not present a basis to invalidate Mr. McKenzie's guilty plea, entered in June 2019, the Court directed Ms. Scolari to file, for the Court's ex parte and in camera review, a letter detailing the circumstances under which Ms. Scolari recently had become aware of the circumstances giving rise to a conflict. The Court has reviewed Ms. Scolari's letter to that effect, dated June 5, 2020, which the Court has directed Ms. Scolari to file under seal. The Court is satisfied that no conflict existed with respect to Ms. Scolari's representation of Mr. McKenzie until mid-May 2020, and that the emergence of this conflict does not, in any way, cast doubt on the viability of Mr. McKenzie's guilty plea or any other aspect of Ms. Scolari's representation of Mr. McKenzie. (Signed by Judge Paul A. Engelmayer on 6/8/2020) (ap)"

 Then, minutes later: "ORDER as to Kintea McKenzie: On June 5, 2020, the Court received a request, via email, from Matthew Russell Lee of Inner City Press, seeking to unseal filings concerning a conflict of interest raised by Kintea McKenzie's now-former counsel, Lisa Scolari, Esq. Later that day, the Court received an ex parte letter, via email, from Ms. Scolari, explaining the nature of the conflict of which she recently had become aware. The Court has determined that Ms. Scolari's ex parte communications relate to highly confidential facts about a separate attorney-client representation, and thus are properly not publicly filed. Accordingly, the Court denies Mr. Lee's request. (Signed by Judge Paul A. Engelmayer on 6/8/2020) (ap)."

  While the order is appreciated, not knowing more about these "highly confidential facts," what happened to the presumption of public access to filings in criminal cases? To the idea of redacting rather than withholding in full? The logic seems circular: it is simply "highly confidential." Why?  Watch this site.

Judge Engelmayer previous said, "An issue arose in March, letter of April 6."

Judge Engelmayer: I expect to grant your request since you say unwaivable conflict. However, this relates to some other legal representation of yours. Which predates this one. At some point some person may claim you've worked under a conflict. I want to know more.

Judge Engelmayer does not order the filing of a public letter, but one "ex parte" with him, in camera so the public will never see.

[Inner City Press wonders: How does the presumptive public nature of Federal criminal cases apply to this?]

Scolari: I will take that under consideration.

Judge Engelmayer: If it is the case that the information you would share would case Mr. McKenzie in a bad light, I could disregard it. When will you send the letter? End of the day Friday. It will be emailed - "We can take care of submitting it under seal."

 Judge Engelmayer: I need to understand why this did not undermine your prior advice to Mr. McKenzie during the plea proceeding. Any order I issue will not disclose any confidential material contained in your letter.

Next CJA lawyer is Mr. Rosenberg.

Judge Engelmayer: You have no connection with Nine Trey?

A: I do not.

Judge Engelmayer: Do you agree, AUSA Longyear?

AUSA: I do.

Judge: Are you ok with this Mr. McKenzie?

A: Yes.

  But when will his sentencing be? And what is the conflict that existed at the time of his guilty plea? Watch this site.

On May 26 Judge Engelmayer put on the docket a handwritten letter to him from Faheem Walter, referred to in the case as "Crippy," emphasizing his colostomy bag and asking for release. Judge Engelmayer ordered Walters CJA lawyer to supplement.
  On May 28 he did, with the the declaration of Dr. Homer S. Venters, who performed a facility evaluation of the MCC on May 13, 2020.

  And on June 1 the SDNY US Attorney's Office filed a generally predictable opposition, which concluded "for the reasons set forth in the Government’s opposition to the defendant’s original motion for compassionate release, and for all of the reasons set forth by the Court during the defendant’s sentencing and in the April 16 Order, the defendant’s motion should be denied." But alongside redactions said to be for medical reasons there was this: "on or about April 30, 2020, BOP confiscated a contraband smartphone from the defendant... the matter was referred to another law enforcement agency." Full letter on Patreon here.

  Then on June 2, Judge Engelmayer denied the motion for sentence reduction: "the Court is constrained to deny Mr. Walter’s motion, which raises no new arguments. Although the effects of Mr. Walter’s gunshot wounds remain significant and the Case 1:18-cr-00834-PAE Document 487 Filed 06/02/20 Page 1 of 2 2 advocacy of Mr. Walter’s counsel remains admirable, the Court still cannot find that Mr. Walter would not be a danger to the community or that the § 3553(a) factors favor an early release. See Apr. 16 Order at 5–6. Accordingly, finding that the § 3553(a) factors do not support a reduction of sentence, the Court denies Mr. Walter’s renewed motion for compassionate release."

 On May 19 Judge Engelmayer granted an extension for the sentencing of #6ix9ine's car-jacker Harv Ellison: "as to Anthony Ellison (9) granting [481] LETTER MOTION addressed to Judge Paul A. Engelmayer from Deveraux L. Cannick dated May 19, 2020 re: Adjournment of Sentencing. ENDORSEMENT: GRANTED. Sentencing is adjourned to July 23, 2020 at 10:00 a.m. The parties shall serve their sentencing submissions in accordance with this Court's Individual Rules & Practices in Criminal Cases. The Clerk of Court is requested to terminate the motion at Dkt. No. 481. (Signed by Judge Paul A. Engelmayer on 5/19/2020)."

 On April 23 6ix9ine's lawyer asked Judge Engelmayer to "permit Mr. Hernandez to spend up to two hours in his backyard, once a week, for employment purposes only. He is looking to record music videos in his backyard." More and a precedent on Patreon here.

 Now on April 29 Judge Engelmayer has granted the two hours in the backyard, but capped #6ix9ine's time in the basement of the "rented property" to eight hours a day: "MEMO ENDORSEMENT as to Daniel Hernandez (4) on [475] LETTER MOTION addressed to Judge Paul A. Engelmayer from Lance Lazzaro dated April 23, 2020 re: Daniel Hernandez home confinement. ENDORSEMENT: The defendant is permitted to conduct employment-related activities outside the residence but within the confines of the rented property for two (2) hours per week on one (1) specific day that needs advanced approval by the Probation Officer. Given structural interference with the GPS tracking device, the defendant's hours in the basement of the residence will be limited to no more than an 8-hour period per day with a schedule as determined by the Releasee and approved by the Probation Officer. The Clerk of Court is requested to terminate the motion at Dkt. No. 475. (Signed by Judge Paul A. Engelmayer on 4/29/2020) (ap)." We'll have more on this - more including order on Patreon here.

 The case is US v. Jones, 18-cr-834 (Engelmayer). More on Patreon here.


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