Man Who Called to
Withdraw Plea before OKd
Got 151 Months Ancillary
Proceeding on Money
By
Matthew Russell Lee, Patreon
SDNY COURTHOUSE,
Aug 30 – Mark
Gonzalez pled
guilty on
August 31,
2022 before a
Magistrate
Judge to a
conspiracy to
distribute 400
grams and more
of
fentanyl.
Then,
he says, from
jail in Essex
County he
called his
retained
counsel and
said he wanted
to take back
his plea.
He
says that was
before the
assigned
District Judge
formally
accepted his
guilty
plea.
On April 14,
2023 U.S.
District Court
for the
Southern
District of
New York Judge
Victor Marrero
held a
proceeding.
Inner City
Press went and
covered
it.
Gonzalez
wanted to fire
his retained
counsel.
The
CJA lawyer
present said
he was honored
to be on the
CJA panel and
would accept
appointed. He
asked the
prosecutors to
leave the
courtroom, and
that the
transcript be
redacted.
Inner City
Press was
still in the
courtroom,
openly.
The upshot is
that the
change of
counsel was
made, and the
CJA counsel
will seek
records about
the alleged
call, which
would have
been recorded,
from the Essex
facility.
The
AUSA, back in
the room, said
they should
get a copy
too, and a
copy of
Gonzelez' CJA
affidavit
which the SDNY
AUSA called a
judicial
record and a
public
document.
(This is
ironic because
when Inner
City Press has
moved to
unseal CJA
affidavits,
the SNDY US
Attorney's
Office has
said it "takes
no
position.")
Judge Marrero
said that
Gonzalez had
already been
found eligible
for CJA
counsel, and
that the CJA
should filed a
letter in two
weeks about
the fruits of
the subpoena.
On
April 28, the
letter was
filed - there
was a call
between
Gonzalez and
his then
counsel, but
the file has
been mailed to
the new CJA
lawyer, on a
CD.
On
May 1, the new
(soon to be
former?) CJA
lawyer wrote
to Judge
Marrero that
he met with
Gonzalez on
April 29 and
was told he is
fired. He has
requested a
conference in
which he he
said he would
request to be
formally
relieved as
counsel.
Inner City
Press went to
that
conference, on
May 5.
Gonzalez,
dressed in the
beige prison
garb of the
Metropolitan
Detention
Center, was
brought in by
two US
Marshals, and
spoke with a
woman in the
gallery, where
Inner City
Press was the
only other
civilian.
When
Judge Marrero
took the
bench, the CJA
lawyer asked
for the
prosecutor to
leave. (He
did). The CJA
lawyer
explained his
"acrimonious"
relationship
with Gonzalez,
and
disagreement
on legal
strategy which
Inner City
Press is
voluntarily
not reporting
here. But the
public version
is that
Gonzalez
contests the
400 grams of
fentanyl
weight, and
whether he
could have
been in a
conspiracy
with his
co-defendant
or some other
relationship.
Judge
Marrero set a
further -
final? -
conference on
the matter of
representation
for May 12 at
10:30 am. He
said he will
not appoint
any new lawyer
for Gonzalez.
On
May 10, the
CJA lawyer
wrote in to
say that
Gonzalez wants
to keep him
on, and he
requested 30
days to file
the motion for
withdrawal of
guilty plea.
The AUSA wrote
in to cancel
the May 12
proceeding.
On
July 7, there
was another
conference on
the lawyer's
motion to
withdraw.
Inner City
Press went,
but the
prosecutor was
out in the
hall, only
Gonzalez and
outgoing /
standby
counsel
inside. Later,
this: "Minute
Entry for
proceedings
held before
Judge Victor
Marrero:Status
Conference as
to Mark
Gonzalez held
on 7/7/2023.
Defense
counsel
Richard Palma
present with
Defendant.
AUSA Ni Qian
present on
behalf of the
Government.
Court reporter
present. The
Court
scheduled this
conference in
response to
Mr. Palma's
letter
informing the
Court that he
wished to be
relieved as
counsel. Mr.
Palma and
Defendant
addressed the
Court ex parte
regarding
defense
counsels
request to
withdraw as
counsel. The
Court granted
Mr. Palma's
request to
withdraw and
ordered that
Defendant
shall proceed
pro se with
Mr. Palma on
stand-by.
Defendant's
motion to
withdraw his
guilty plea
shall be due
July 21,
2023."
On
October 31,
2023, Judge
Marrero denied
Gonzalez's
motion to
withdraw his
plea: " it is
hereby ORDERED
that the
motion of
defendant Mark
Gonzalez (Dkt.
No. 132) to
withdraw his
plea is
DENIED."
On
January 11,
Gonzalez got
his last (CJA)
lawyer: "The
Court
underscored
that Mr.
Gonzalez has
been appointed
numerous
previous
counsel, and
that if Mr.
Gonzalez
decides that
he is not
willing to
proceed with
Mr. El
Ashmawy, the
Court will not
appoint any
other counsel,
and Mr.
Gonzalez would
then have to
proceed pro se
or retain
counsel. The
Court
reiterated it
intended to
proceed with
sentencing on
March 15,
2024, and the
Court denied
all
outstanding
requests or
motions,
without
prejudice."
Received
March 4 and
docketed on
March 8,
Gonzalez wrote
to Judge
Marrero with
emails between
his former
lawyer and one
the lawyer
called his
"lady friend,"
about
withdrawing
his plea.
Gonzalez
argues it
shows
ineffective
assistance of
counsel. But
sentencing is
still set for
May 17 at 1
pm. And his
new CJA lawyer
has request a
conference to
determine if
Gonzalez
wishes to go
Pro Se again.
On
March 11 Judge
Marrero denied
Gonzalez'
(second)
motion to
withdraw his
guilty plea.
On
April 24,
this: "On
April 14,
2024, CJA
attorney Yusuf
El Ashmawy
filed a letter
notifying the
Court that
defendant Mark
Gonzalez had
fired him over
email earlier
that day, and
requesting to
withdraw as
counsel for
Gonzalez.
(Dkt. No.
170.) The
Court has
previously
warned
Gonzalez that
if he is not
willing to
proceed with
El Ashmawy as
counsel, "the
Court will not
appoint any
other
counsel... at
this stage."
(Dkt. No. 160,
Hr'g Tr.
5:17-25; see
also Dkt. No.
165
("Regardless"
of Gonzalez's
choice, "the
Court will
proceed to
sentencing of
Gonzalez as
scheduled on
May 17,
2024.").)
Accordingly,
the Court
hereby
schedules a
Faretta
hearing this
Friday, April
26, 2024, at
12:00 p.m., in
Courtroom 15B
at 500 Pearl
Street, New
York, NY
10007. At this
hearing, the
Court will
consider El
Ashmawy's
request and
determine if
Gonzalez
wishes to
proceed with
El Ashmawy or
if he instead
wishes to
proceed pro se
at his
sentencing
proceeding on
May 17, 2024,
at 1:00 p.m."
On
May 10,
Gonzalez'
(outgoing?)
lawyer wrote
in asking for
a 121 month
sentence.
On
July 19,
Gonzalez was
sentenced to
151 months:
"JUDGMENT IN A
CRIMINAL CASE
as to Mark
Gonzalez (1).
THE DEFENDANT:
pleaded guilty
to count One
of Superseding
Information
21-CR-288. All
open counts
are dismissed
on the motion
of the United
States.
IMPRISONMENT:
151 months.
The court
makes the
following
recommendations
to the Bureau
of Prisons:
The Court
respectfully
recommends
that the
Defendant
serve his time
of
incarceration
at FCI Fort
Dix, or
alternatively
at FCI
Danbury. The
Court also
respectfully
recommends
that the
Defendant be
admitted to
the
Residential
Drug Abuse
Program
(RDAP), or any
other drug
treatment
program
available, to
the extent he
is eligible."
On
August 14, a
letter about
the $5715
found under
the bed in a
red tin
perfume box,
that it was
not connected
to crime but
rather a job
with the NYC
Department of
Education and
should be
returned.
On
August 24 the
US Attorney's
Office replied
that Gonzalez
now has no
standing, and
that his
girlfriend
cannot
intervene in
the criminal
case but only
in a later
"ancillary
proceeding
pursuant to 21
USC 853 and
Rule 32.2(c)."
Few would do
this for
$5000, which
the US still
seeks in an
order of
forfeiture.
On
August 30,
this:
"Gonzalez's
objection is
DENIED, and a
Preliminary
Forfeiture
Order shall be
entered
forthwith. FOR
THE REASONS
STATES ABOVE,
IT IS HEREBY
ORDERED that
defendant Mark
Gonzalezs
objection to
entry of a
forfeiture
order is
DENIED; and it
is further
ORDERED that a
Preliminary
Forfeiture
Order as to
Gonzalez shall
be entered
forthwith; and
it is further
ORDERED that,
should Yahaira
Rodriguez
still wish to
seek return of
the seized
money, she
shall petition
the Court for
an ancillary
hearing to
adjudicate her
interest in
the forfeited
property and
to amend the
Preliminary
Forfeiture
Order,
pursuant to 21
U.S.C. §
853(n). An
example of
such a
petition can
be found at
United States
v. Meira, No.
15 Cr. 627
(S.D.N.Y.),
ECF No. 439
(Oct. 17,
2018).
Rodriguez is
advised to
attach to her
petition
documentation
supporting her
assertions.
(See Order,
Dkt. No. 198
(directing
Rodriguez to
provide
documentation
confirming her
employment and
salary at NYC
DOE and
confirming who
was on the
lease for her
apartment
during the
relevant time
period). it is
further
ORDERED that
the Government
and/or standby
counsel
Camille Abate
are directed
to promptly
mail a copy of
this Order to
Rodriguez"
Inner
City Press
will continue
to follow the
case. It is US
v. Gonzalez,
21-cr-288
(Marrero)
***
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