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As US Seeks To Seal SDNY Sentencing of Rodriguez Inner City Press Writes To Judge Sullivan

By Matthew Russell Lee, Exclusive; Video, pics

SDNY COURTHOUSE, August 6 – A man who pleaded guilty to narcotics charges back in June 2005 was belatedly set to be sentenced on 26 July 2019 but then asked that it be delayed three weeks and sealed, in a joint request with the U.S. Attorney for the Southern District of New York. Inner City Press was present; Circuit Judge Richard J. Sullivan corrected told Assistant US Attorney Nicholas W. Chiuchiolo that he should make his request to seal in writing.

  On August 3 Inner City Press wrote to Judge Sullivan, copying AUSA Chiuchiolo and defendant Jose Rodriguez' lawyer Peter Joseph Guadagnino, about and opposing the proposed sealing: "August 3, 2019 

Via e-mail to [Chambers] and counsel by e-mail 

The Honorable Richard J. Sullivan  United States District Court Southern District of New York  40 Foley Square  New York, NY 10007 

Re: United States v. Jose Rodriguez 05-cr-221 (RJS) 

Dear Judge Sullivan:     

I am a journalist interested in covering the above-captioned sentencing, as well as other criminal proceedings. As such I was in your courtroom 15A on July 26, 2019 when the defendant's counsel and the Government sought a sidebar (denied) and then that the sentencing be sealed.    

You directed them to make their requests to seal in writing on or before August 16, 2019, but seemed to indicate that even their requests could be made under seal.    

I am writing this letter, copying both counsel, to express my interest and that of Inner City Press in covering the sentencing and therefore in having an opportunity to review and if necessary respond to any requests to seal and exclude the press.    

On July 26 Your Honor cited U.S. v. Amodeo; reference is also made to United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988) and United States v. Alcantara, 396 F.3d 189, 196 (2d Cir. 2005). 

I note that as of August 3 there are no such requests to seal filed in the docket on PACER, not even any record of the sentencing submissions presumably submitted on July 11 and July 18, 2019.  Again, I am submitting this as a letter by email to Chambers and both counsel, and not as a motion opposing sealing, in part because I have not seen any request(s) for sealing.  

 I and Inner City Press will appreciate being informed when and what portions of any requests for filing will be available for viewing and possible response, and being apprised of rights to attend and cover the sentencing.  Respectfully,  Matthew Russell Lee Inner City Press 
cc: Nicholas W. Chiuchiolo, Assistant U.S. Attorney (by e-mail)  Peter Joseph Guadagnino, Esq. (by e-mail)"
  But by the close of Tuesday, August 6, when Judge Sullivan had announced the prospective partial sealing of his courtroom even for a trial, there was no response - not only directly from chambers or the District Executive, but from either counsel. Inner City Press will have more on this.

  Inner City Press initially voluntarily chose not to disclose even the case name. But it must have an opportunity to be heard on any possible sealing of the publicly announced sentencing which it went to attend and cover and was then pulled back.

   Tellingly, the sentencing submissions by the government due July 11 and by the Defendants due July 18 were not even listed in the docket as sealed documents, and still as of August 6 are not. It is as if they were never filed.

 Now in 2019 that the Press goes, the first move to was move the proceedings to the robing room. Then to simply order the Press to leave. Then to do so after a whispered sidebar. Now this - in context, progress. But what about the opportunity to be heard? Watch this site.

Back on July 22 in a court proceeding that began as open, with the defendants' family members and even legal interns present, Inner City Press was ordered to leave, leaving no media or member of the general public present.

  It took place in the U.S. District Court for the Southern District of New York at 500 Pearl Street in Courtroom 14C before Judge Paul A. Crotty: USA v. Perlson, 18-cr-751.

  When Inner City Press went in at 11:30 am, at first Judge Crotty was asking why a transcript in the case said it was from November 31, when November has only 30 days.

  "Good catch," the Assistant US Attorney said, adding that he thought it was from October 31. He added that Perlson would now be allocuting to Count 2 and that there was a cooperation agreement.

  Suddenly the lawyers pointed out Inner City Press in gallery, and said while legal interns were OK then objected to Inner City Press' presence. Judge Crotty asked Inner City Press to identify itself.

  "I am a reporter. If you are going to try to close a public courtroom there must be specific findings, for specific portions. There is case law."

  There followed a sidebar, apparently transcribed, from which Inner City Press was excluded. At the end Judge Crotty while ordering Inner City Press to leave said that the government's case is moving along well and that he hoped to unseal the transcript in a month.

  But is that enough? Inner City Press left the courtroom as ordered, adding as it left that a case on point is United States v. Haller, 837 F.2d 84, 87 (before closing a proceeding to which the First Amendment right of access attaches, the judge should make specific, on the record findings demonstrate that closure is essential to preserve higher values and is narrowly tailored to serve that interest).

  But Inner City Press was not given an opportunity to make its argument before being ordered out. And once back to the PACER terminal at which it has been working for months, searching by "Perlson" resulted in nothing, and 18-cr-751 "case not found."

  On 9 July 2019 before SDNY Judge Loretta A. Preska: listed on PACER and in the SDNY lobby for 10 am before her was the case of USA v. Connors Person, et al, 17-cr-683, complete with letters of support from the head bank regulators of the state of Alabama.

  But when Inner City Press arrived at 10:10 am, there was a shackled defendant with corn rows at the defense table. His lawyer stood and summoned Assistant U.S. Attorney Frank Balsamello out into the hall by the elevators.  When they returned, at the same time as two of the defendant's family members, Judge Preska asked about those present in the room, and summoned the lawyers up for a sidebar - with a court reporter, which may later be significant.

  After the sidebar discussion, Judge Preska called the case as US v. Santino-Barrero (phonetically - it was not written down anywhere.) Then Judge Preska asked the defendants' family members to stand, then the legal interns, then other interns introduced by one of the Marshals.

  "Is that you in the back, Mister Lee?" Judge Preska asked.  Inner City Press previously reported daily on the UN bribery trial and sentencing of Patrick Ho before Judge Preska, once answering in open court her question about press access to exhibits in that case. So the answer was Yes.

  I'm going to have to ask you to leave, Judge Preska said. Inner City Press considered asking why, right there, but decided against it. It has recently been advised to not ask so many question, even as its question about a suddenly sealed June 17 sentencing by SDNY Judge Lorna Schofield remains unanswered, see below.

  The PACER terminal in the SDNY Press Room does not list a Santino Barrero as a defendant. The Bureau of Prison's website is only searchable with a first name, which was not given.

  Back on June 17 the sentencing of a defendant seeking time served, seemingly for cooperation with the government, was abruptly declared "sealed" by SDNY Judge Lorna G. Schofield on June 17.

She said she was going to seal the transcript, but that once this reporter walked into her open courtroom 1106 in 40 Foley Square, she moved the entire proceeding into her robing room, closed to the Press and public.

 On June 18 Inner City Press requested the name and number of the case, and that all portions that do not need to be redacted or sealed be provided or placed in the docket.

 Inner City Press is pursuing this because it is a precedent and trend. On June 17 when SDNY Judge Schofield, her Courtroom Deputy James Street and the shackled defendant, Assistant US Attorneys and US Marshals emerged twenty minutes later, Judge Schofield said only, "We're adjourned." There was no disclosure of the outcome of the proceeding - as Inner City Press walked in, the defendant's lawyer was asking for time served."

Then Judge Schofield said she wanted to "shake hands with our visitors" and proceeded to do just that with the two other people in the gallery. Inner City Press left.

  Nowhere on the electronic board in the SDNY lobby at 500 Pearl Street was any proceeding before Judge Schofield at that time list. Nor in the day's PACER calendar.

  Inner City Press will have more on this - see also @InnerCityPress and the new @SDNYLIVE.


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