| After Scoop
on Plea of Benjamin Co-defendant Dismissal
of Counts Reversed Now Cert Petition
By Matthew
Russell Lee, Patreon
SDNY / Mag
Exclusive, May 6 – Gerald
Migdol, a lawyer who develops
real estate in Harlem, was
arrested early on November 19,
2021. Inner City Press covered
his arraignment and when he
was freed on $250,000 bond.
On April 12 the
other shoe dropped when New
York State Lt. Gov. Brian
Benjamin was indicted.
On
August 10,
there was oral
argument on
Benjamin's
motions and
Inner City
Press live
tweeted it here
and below.
On December
5, Judge J.
Paul Oetken
issued an
order dismissing
three of the five
counts against
Benjamin. Order here;
"Defendants
motion to
dismiss is
granted as to
the first
three counts.
The Indictment
is sufficient,
however, with
respect to the
falsification-of-records
charges in the
fourth and
fifth counts,
as to which
the motion to
dismiss is
denied."
Before
5 pm on December
5, the US
Attorney's
Office
appealed:
"NOTICE OF
APPEAL
(Interlocutory)
by USA as to
Brian Benjamin
from [76]
Memorandum
& Opinion."
On
March 2 the US
asked to push
back Migdol's
sentencing,
given his "ongoing
cooperation
with the
Government,
which is
expected to
extend at
least through
trial in this
case."
On
March 6, Judge
Oetken re-set
Migdol's
sentencing for
March 7, 2024.
Inner
City Press
will continue
to cover the
case.
Back on
April 14, the day before a
scheduled proceeding in the
Migdol case, sources told
Inner City Press that Migdol
had appeared in Magistrates
Court - presumably to
cooperate / plead guilty.
Inner City Press tweeted
and reported
it. On April 15, at the time
of his proceeding, it was
"adjourned sine die." See here.
On May 10 they
unsealed the April 13
transcript which reflects the
Migdol's counsel asked
"because of the sensitivity of
the matter we would ideally
ask that you actually seal the
courtroom."
So,
stealth sealing. And scoop,
including as to cooperation
On May 12
Benjamin was before Judge
Oetken and Inner City Press
was there. His lawyers again
pushed the McCormick
precedent, and a briefing
schedule was set, culminating
in an oral argument August 10.
Benjamin's trial is set for
January 23, 2023. Afterward,
Inner City Press in Foley
Square asked Benjamin when he
knew of Migdol's plea - since
the basis of the sealing was
"sensitivity," presumably
meaning a threat of
retaliation. There was no
answer. Video here.
Editorial on
closing the loophole here.
On November 22,
2022 Benjamin's lawyer
submitted a redacted letter
arguing he should have gotten
100,000 documents from
Migdol's laptop, iCloud
account and Gmail account.
They want the documents of, in
the alternative, a Rule 17(c)
subpoena. Watch this site.
Back on August
10, there was oral argument on
Benjamin's motions and Inner
City Press live tweeted it here:
On July 14,
Benjamin's lawyer submitted a
memo questioning and
requesting discovery
into Migdol's allocution
- but large portions of the
filing are blacked up,
redacted. Photo here. Watch
this site.
Back
in November Migdol was brought
before U.S. District Court for
the Southern District of New
York Magistrate Judge Ona T.
Wang on the afternoon of
November 19, in blue jeans.
Inner City Press was there, in
the gallery.
As it
happens, Judge Wang was also
on duty on April 12, 2022. In
the early afternoon she
arraigned and freed Benjamin -
on agreed conditions that
allow travel to Georgia and
Virginia, but not Albany:
"Travel restricted to
SDNY/EDNY/N.D.Ga., E.D.Va
& points in between."
Inner City
Press sought to ask Benjamin
why, when he left the
courthouse, video here.
On April 18,
Benjamin appeared with his new
Kramer Levin lawyers, who said
that this is the first case
prosecuting only political
contributions, with no
personal gain. Inner City
Press live tweeted it here
Back to Migdol's
initial presentment: he Office
of the US Attorney, being
publicly sworn in at exactly
that time at the Harlem
Armory, agreed to Migdol's
release on $250,000 personal
recognizance bond.
Migdol has
a gun, which must be turned
into the local police precinct
by November 23, and an expired
passport due later.
Jump cut to
February 21, 2024 - the
prosecutors informed the judge
that Migdol has died, and the
case has been ended nolo
prosequi.
But on April 29,
2024, the Second Circuit
reversed the dismissals: "USCA
MANDATE ON INTERLOCUTORY
APPEAL (certified copy) as to
Brian Benjamin re: [77] Notice
of Appeal - Interlocutory.
USCA Case Number 22-3091. The
appeal in the above captioned
case from an order of the
United States District Court
for the Southern District of
New York was argued on the
district court's record and
the parties' briefs. IT IS
HEREBY ORDERED, ADJUDGED and
DECREED that the judgment of
the district court dismissing
Counts One, Two, and Three of
the indictment is REVERSED and
the case is REMANDED for
further proceedings consistent
with this Court's opinion.
Catherine O'Hagan Wolfe, Clerk
USCA. Issued As Mandate:
4/29/2024."
On May 6 a joint
letter informed Judge Oetken
that "Benjamin intends to file
a petition for certiorari,"
and proposed to further stay
the case at least until
October 11.
Inner City Press
will stay on the case.
It is US v.
Migdol, 21-cr-706 (Oetken /
Wang)
***
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