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Former CEO Of Iconix Wanted To Exclude Size of Stock Sales But SDNY Jury Will Hear $28M

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, Sept 30 – Neil Cole, the brand manager charged with financial chicanery was freed on $1 million bond on December 5, 2019 and allowed to travel throughout the United States by agreement of the US Attorney's Office, contrary to the "SDNY and EDNY only" restrictions they routinely place on less affluent defendants.

SDNY Magistrate Judge Barbara Moses accepted the agreed bail conditions, and said that they can be appealed or asked to be modified before SDNY Judge Edgardo Ramos to whom the case is assigned.

On December 29, the US Attorney's Office opposed Cole's subpoena served on Baked by Melissa, where Seth Horowitz, a Government cooperating witness, was the CEO. The US Attorney's Office says the information sought is not relevant, but rather a fishing expedition.

On January 4 Cole's lawyers at Paul Weiss wrote to Judge Ramos, "We understand that Seth Horowitz, now a cooperating witness for the government, also was scheduled to provide SEC testimony in late 2018, but that at or around the same time that Mr. Cole's testimony was rescheduled, Mr. Horowitz's testimony was canceled, likely at the request of the U.S. Attorney's Office, to prevent Mr. Horowitz from testifying and avoid creating a record that could be helpful to Mr. Cole... In July 2020, counsel for Mr. Cole submission a FOIA request to the SEC."

  On March 10, Judge Ramos quashed the subpoena of the Baked by Melissa CEO, as lacking in specificity and casting too wide a net.

But the real fight now in June 2021 is when the trial will be. On June 1, Judge Ramos disclosed that US v. Cole is only the second choice to begin on July 6. So the US asked to suspend the pretrial schedule and its disclosures. The defense says this is unfair. Judge Ramos has set a June 11 hearing. Watch this site.

On January 5 Judge Ramos held a proceeding and Inner City Press live tweeted it here and below.

  On June 11, Judge Ramos held another proceeding, and Inner City Press again covered it. The US Attorney's Office asked to postpone the trial from July 6.

Cole's defense lawyer asked to go forward on July 6, but lost that. He then asked for Giglio and 3500 material sooner than the October 4 new trial date set by Judge Ramos.

  Cole won on one of those: he's to get 3500 material by July 15, while Judge Ramos sees if he can do a three week trial in his own courtroom in 40 Foley Square before October 4.

  Now on September 2 the Government has opposed Cole's motion to get the name "of an individuals who provided information that was the subject of a July 3, 3021 disclosure by the Government." The AUSA says Federal Defenders, which represents the individuals, already provided the name. We'll see.

On September 10, Cole filed a motion in limine seeking to exclude evidence of his sale of a million shares of Iconix stock, saying allowing it in would create "unfair prejudice." He cites a Supreme Court decision US v. Socony-Vacuum Oil Co. (it's from 1940), that "appeals to class prejudice are highly improper.

Cole argues, "Evidence of a multi-million dollar financial gain from the sale of stock - particularly in the face of current economic challenges plaguing many in New York and throughout the country - presents a serious danger of undue prejudice."

On September in an in-person final pre trial conference, Cole's lawyer argued that hearing "$28 million" would be prejudicial. The AUSA said it show motive, and Judge Ramos agreed, citing US v. Quattrone, 441 F.3d 153, 179-80 (2d Cir. 2006). So it will come in at the trial, which Inner City Press will cover. Watch this site.

The case is US v. Cole, 19-cr-869 (Ramos).


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