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In #6ix9ine Case Harv Ellison Sentencing Delay for COVID Quarantine on South Carolina

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

SDNY COURTHOUSE, Oct 2 – 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. #6ix9ine has been doing Instagram Live's from Chicago and elsewhere.

  In a parallel universe Harv Ellison, who some refer to as Tekashi69's car-jacker, is now up for sentencing -- but when? After multiple delays, on October 2 this: "ORDER as to Anthony Ellison: Sentencing of defendant Anthony Ellison is presently scheduled for Wednesday, October 7, 2020, at 10:00 a.m. That date was selected by the Southern District Board of Judges based on, inter alia, the representation of lead defense counsel that he was available that week and day. Regrettably, however, the Court was notified today that lead defense counsel returned to New York State three days ago from South Carolina. Because persons arriving from South Carolina are obliged by New York State to quarantine for two weeks upon return, counsel necessarily will not be available to appear on Mr. Ellison's behalf next week at sentencing. In the interests of assuring that Mr. Ellison is represented by his lead counsel at sentencing, the Court has no choice but to adjourn the sentencing. The Court regrets the disruption caused by this change of schedule, and the frustration that surely will be experienced as a result by Mr. Ellison, whom the Court understands to wish to move promptly to sentencing so as to expedite his eventual transfer from the Metropolitan Correctional Center to a federal prison. The Courts intention is to hold Mr. Ellison's sentencing during the week of October 13, 2020, if a date and time can be arranged that week consistent with the availability of the Government counsel responsible for this sentencing, and if not, as soon as possible thereafter. The Court expects that Mr. Ellison's counsel will be available to attend sentencing on the date assigned that week by the Board of Judges, and will not undertake travel plans before sentencing that would subject himself to a future quarantine. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 10/2/2020)."

 In advance, his lawyers have gotten permission to redacted and withhold at least half of their letter: " the defense would respectfully request that certain portions of the exhibits be filed under seal. As an initial matter, Mr. Ellison’s letter reveals the horrors that he has experienced and continues to experience while being incarcerated at MCC-New York. Mr. Ellison’s letter presents a record of conditions at MCC-New York that are appalling. It is clear that the conditions within MCC-New York are truly harsh, especially during the pandemic caused by COVID-19. These circumstances have caused Mr. Ellison anxiety and his submission was prompted by the uncertainty that he necessarily feels during this time. The defense submits that Mr. Ellison meant no disrespect to the Court and the defense would respectfully renew its request that the Court consider imposing a sentence below the guidelines due to the truly harsh conditions that Mr. Ellison has experienced while being incarcerated." Then two full paragraphs redacted. On what basis?

In June 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, as it will the sentencing - when it happens. There was this:

"The Court adjourns Mr. McKenzie's sentencing until September 25, 2020 at 10:00 a.m., in recognition of defense counsel's request that sentencing not be held at a time when traveling to court may present heightened health risks to counsel. (Signed by Judge Paul A. Engelmayer on 6/18/2020)."

 And now on September 8, this: SCHEDULING ORDER as to Kintea McKenzie. At the defendants request, reflected in a letter properly filed under seal, the Court adjourns sentencing for 30 days, until October 15, 2020 at 10:30 a.m. The Court does so out of respect for defense counsels concern that travel to and from an in-person sentencing proceeding may expose counsel and the defendant to medical risks in light of the current pandemic. The Government does not oppose this request. Mr. McKenzie's conditions of release remain in place. In the event of a request for an additional adjournment, the Court will promptly convene a telephone conference to address the request and to set a prompt date for Mr. McKenzie's surrender. The parties should consult the Court's Individual Rules and Practices for Criminal Cases for sentencing-related procedures and practices. Consistent with the Court's Rules, the defendants sentencing submission shall be served two weeks in advance of the date set for sentencing. The Government's sentencing submission shall be served one week in advance of the date set for sentencing. The parties should provide the Court with one courtesy hard copy of each submission when it is served. If a party does not intend to file a substantive sentencing submission, the party should file a letter to that effect. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 9/9/2020)." So, October 15. A letter sealed in its entirety, rather than redacted?

  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 what is the conflict that existed at the time of his guilty plea? Watch this site.

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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