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As Sealing Of Epstein Documents Challenged, 2d Circuit Judge Asks If Cernovich Is In A Slut Shaming Cabal

By Matthew Russell Lee, Periscope

FEDERAL COURTHOUSE, March 6 – When the question of releasing or at least reviewing sealed Jeffrey Epstein documents was taken up by the U.S. Court of Appeals for the Second Circuit on March 6, Alan Dershowitz was in the back of the courtroom. Later he moved up, finally tapping his lawyer on the shoulder before his lawyer's two minutes of reserved time.

All of the parties - the Miami Herald's Julie Brown, Mike Cernovich, Alan Dershowitz and even Virginia Giuffre -- were pushing for the unsealing of the documents, except Ghislaine Maxwell.  Her lawyer Ty Gee argued that people had relied on the commitment to seal the information. He ended by saying the U.S. judicial system is not about democracy.

But by then the panel of Judges of Cabranes, Pooler and Droney had made it pretty clear they will be remanding the case and the 167 documents back to the U.S. District Court for the Southern District of New York. The only question seems to be whether Judge Sweet, who initially agreed to seal them, will get the case on remand or if another judge will.

Inner City Press asked Dershowitz, by the elevators after the argument, what he thought of Judge Sweet. He began to say, Judge Sweet made a mistake - when first his lawyer gestured that they should go, and then the clerk of court asked everyone to leave the floor. Dershowitz recounted that he argued his first case in the Second Circuit in 1969. He challenged Giuffre to sue him, and of Judge Cassel was highly critical, a term of art.

Another term of art: slut-shamer, a term applied during the argument to Mike Cernovich but one that the judges mocked, with Judge Pooler asking if there was a "slut-shaming cabal." The wider point was that there is in the United States no system for certifying journalists, that as the Ninth Circuit case Opsidium v Cox has it, journalist is something you do, not something you are.

All citizens - and non citizens, as in the case of Argentines seeking information about their country's debt revealed in a U.S. case - have a right to information, a right that predated the Constitution.  The judges reserved judgement. Inner City Press will continue to cover this and other SDNY and 2nd Circuit cases - watch this site.

  On March 5 college basketball scandals involving Adidas and University of Louisville with a glancing reference to Rick Pitino resulted in the U.S. District Court for the Southern District of New York in prison sentences of nine months for James Gatto, and six months each for Merl Code and Christopher Dawkins, to be served in Oregon, South Carolina and West Virginia respectively. Each was given bail pending appeal.

SDNY Judge Lewis A. Kaplan heard from each of the defendants' lawyers and then from the defendants themselves, each of whom had family members in the courtroom. Judge Kaplan made a point of mentioning a victim with a family, whose father felt he ruined his son's life and who is now playing not in the NBA but in Australia. Judge Kaplan said it's a fine country but not what Tug had dreamed for himself. A particular wiretap played during the trial was cited by Judge Kaplan, in which the parties said they had to leave Rick Pitino "plausible deniability." This in the run up to this year's March Madness. Madness, indeed.

Merl Code's lawyer did most of the talking, in a Southern accent, at one point favorably comparing Judge Kaplan to his own mother. There was laughter in the courtroom. It won't help you, Judge Kaplan quipped. But who knows? In the argument for bailing pending appeal, Judge Kaplan hearkened back to having won bail for a client some forty years ago by arguing to a judge in Rhode Island that the judge's decision was likely to be reversed. The U.S. Attorney's office, represented at the sentencing by Edward B. Diskant, said they were convicted "for conspiring to defraud universities by funneling illicit payments to the families of high-school and college basketball players and concealing those payments – which were prohibited by university policies and NCAA rules – from the schools. GATTO, the Director of Global Basketball Sports Marketing at Adidas, CODE, an Adidas consultant, and DAWKINS, an aspiring manager of professional athletes, will be sentenced on March 5, 2019, at 10:00 a.m. by Judge Kaplan, who presided over the four-week trial. Two other scheme participants, MUNISH SOOD, a financial advisor, and THOMAS “T.J.” GASSNOLA, a former Adidas consultant, previously pled guilty in connection with their participation in the fraudulent scheme." Gatto will be back in front of Judge Kaplan on the restitition issue on Paril 9 at 10 am...

The day before in the same courthouse the jury in a week-long Bronx gang case  passed a note on to Judge Robert W. Sweet, who said it indicted a lack of unanimity, but not necessarily division. But should he read the note into the record? Initially the prosecutors from the U.S. Attorney's office said yes, and provided Judge Sweet a citation. But when he re-emerged from his chambers agreeing to show both sides the note, he asked why he should read it into the record. Now the prosecutors said they would defer to the lawyers for the defendant, Christopher Howard, and not read it into the record. Which meant, and still for now means, that the press and public have no way to know what it says.

  Isn't there's an interest in the public, separate from the government's interest, in knowing of this process? The interest was cited recently in this SDNY to release some of what was seized in the raid on Michael Cohen's home. Why does that logic not apply to this? And how does the Press, entering each day from the metal detectors, go about asserting and pursuing that interest? Inner City Press, on this day and in this case the only media in the courtroom, last month covered the decision by SDNY Judge Pauley
From the SDNY decision in U.S. v. Cohen, 18-cr-00602: "the presumption of access is at its core tethered to the need for public monitoring of the federal courts and their exercise of judicial power. Cf. SEC v. Van Waeyenberghe, 990 F.2d 845, 847 (5th Cir. 1993) (explaining that “[t]he public’s right to information does not protect the same interests that the right of access is designed to protect”). As the Second Circuit explained, Monitoring both provides judges with critical views of their work and deters arbitrary judicial behavior. Without monitoring, moreover, the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access to testimony and documents that are used in the performance of Article III functions. Amodeo II, 71 F.3d at 1050." 

  The same question has been raised in another SDNY case, this one civil and involving the employment practices of the Qatari royals who live in a mansion on 72nd Street. There, Judge Oetken told the parties to agree among themselves how much to seal. But this is a criminal case.

On March 1 with the jury already out, defendant Howard upon returning to the courthouse at 2 pm had to jump to the front of the security line to ensure arrival in the courtroom on time. So did others. This case in ongoing - watch this site. How guns eject shell casings was the subject of expert testimony in this case on February 27. An ATF agent traced a bullet back to Illinois; under cross examination he said a shell casing might eject feet rather than yards unless it bounced on something. The next day on February 28 the defense's failure to cross examine this testimony was emphasized in the government's summation; that the bullet was made in Illinois was presented as a basis to find that these half-block gangs impact inter-state commerce. A Facebook official testified, and the defendant's messages were shown, aiming to "peter roll that birch ass 'N-word.'" Judge Sweet in his March 1 lengthy charge to the jury said that "the defendant is not even required to cross examine witness." He told the jurors to disregard any questions he had asked witnesses, add that he didn't remember asking any (unlike for example Judge Hellerstein in the other racketeering trial still ongoing in the SDNY, of Joe Cammarano.) The differing demographics of the two courtrooms, and the lack of any other media in the Bronx case, were striking. The testimony went back to 2007, a 14-year old with a gun heading from the Millbrook projects to the Mitchell Houses. The defense asked for a mistrial when the name of a second gang was introduced; the prosecution shot back (so to speak) that it came from the photos on the defendant's own Facebook page. And so it was in summation. Back on February 25 a prison sentence of life plus five years was imposed for a Bronx murder by SDNY Chief Judge Colleen McMahon on February 25. She presided over the trial in which Stiven Siri-Reynoso was convicted of, among other things, murder in aid of racketeering for the death of Jessica White, a 28 year old mother of three, in the Bronx in 2016. Jessica White's mother was in the court room; she was greeted by Judge McMahon but declined to speak before sentencing. Siri-Reynoso was representing himself by this point, with a back-up counsel by his side. Judge McMahon told him, "You're a very smart man... a tough guy, a calculating person... You are a coward, sent a child to do it for you... Your emissary shot the wrong person, a lovely lady... It was a vicious, evil attack against the good people of that neighborhood." When she imposed the life plus five sentence, a woman on the Jessica White side of the courtroom cried out, yes Ma'am, put the animal away! Later, after Siri-Reynoso ended asking how he can get more documents about the case, a woman on his side of the courtroom said, "No te preocupes, muchacho, Dios sabe lo que hace" - don't worry, God knows what he is doing. But does He? Earlier on February 25 when the government tried to defend its 2018 change of policy or practice on Special Immigrant Juvenile status in the U.S. District Court for the Southern District of New York Judge John G. Koeltl had many questions about the change. He asked, are you saying that all the decisions before 2018 were just wrong, under a policy in place but not implemented at the time? In the overflow courtroom 15C the largely young audience laughed, as the government lawyer tried to say it wasn't a change of policy but rather an agency interpretation of the statute. Shouldn't there have been notice and comment rulemaking under the Administrative Procedure Act? The government said the argument proffered for this was about the Freedom of Information Act (on which, as Inner City Press has noted, the US Office of the Comptroller of the Currency has similarly reversed its policy 180 degrees without justification). SDNY Judge Koeltl demanded t know if the government is arguing that no juvenile court in New York, California (and maybe Texas for other reasons he said) is empowered to grant relief. The answer was far from clear - but where the ruling is going does seem so. Watch this site. The Bangladeshi Central Bank which was hacked for $81 million in February 2016, on January 31 sued in the US District Court for the Southern District of New York. Now the first pre-trial conference in the case has been set, for 2 April 2019 before SDNY Judge Lorna G. Schofield. Inner City Press will be there.

In Dhaka, the Criminal Investigation Department which failed to submit its probe report into the heist on time has now been ordered by Metropolitan Magistrate Sadbir Yasir Ahsan Chowdhury to do so by March 13 in Bangladesh Bank cyber heist case.

In the U.S. District Court for Central California, the unsealed criminal complaint against Park Jin Hyuk lists four email addresses involved in spear-phishing Bangladesh Bank and among others an unnamed "African Bank;" one of these addresses is said to also have communicated with an individual in Australia about importing commodities to North Korea in violations of UN sanctions.

To the Federal Reserve, Inner City Press has requested records relating to the Fed's role with response due in 20 working days - watch this site. In the SDNY, the case is Bangladesh Bank v Rizal Commercial Banking Corp et al, U.S. District Court, Southern District of New York, No. 19-00983. On February 3 in Dhaka Bangladesh Bank's lawyer Ajmalul Hossain said it could take three years to recover the money. The Bank's deputy governor Abu Hena Razee Hasan said those being accused -- in the civil not criminal suit -- include three Chinese nationals. Ajmalul Hossain said the Bank is seeking its hacked million plus interest and its expenses in the case. He said US Federal Reserve will extend its full support and that SWIFT, the international money transfer network, also assured of providing all the necessary cooperation in recovering the hacked money.  The Philippines returned $14.54 million in November 2016, so $66.46 million has yet to be retrieved. Now defendant RCBC Bank of the Philippines has hired the Quinn Emanuel law firm to defend it, and it already fighting back in words. RCBC’s lead counsel on the SDNY case, Tai-Heng Cheng, said:  “This is nothing more than a thinly veiled PR campaign disguised as a lawsuit. Based on what we have heard this suit is completely baseless. If the Bank of Bangladesh was serious about recovering the money, they would have pursued their claims three years ago and not wait until days before the statute of limitations. Not only are the allegations false, they don’t have the right to file here since none of the defendants are in the US." But it seems the funds were transferred to and through the Federal Reserve Bank of New York. And as Inner City Press reported in the US v. Patrick Ho case last year, the wiring of funds through New York can confer jurisdiction. Inner City Press will be covering this case. The first paragraph of the 103 page complaint reads, "This litigation involves a massive, multi-year conspiracy to carry out one of the largest banks heists in modern history right here in New York City. On February 4, 2016, thieves reached into a bank account at the Federal Reserve Bank of New York (“New York Fed”) and stole approximately $101 million (out of the nearly $1 billion they attempted to steal). The bank account was held for the benefit of Bangladesh Bank, which is Bangladesh’s Central Bank. Bangladesh Bank has had a 45-year banking relationship under which it has placed its international reserves with the New York Fed. The New York Fed is a critical component of the United States’ central banking system and its link to the international financial system." Bangladesh's lawyers on the case are "COZEN O’CONNOR John J. Sullivan, Esq.  Jesse Loffler, Esq. Yehudah Gordon, Esq." We'll have more on this.

Debaprasad Debnath, a general manager at the central bank’s Financial Intelligence Unit, Joint Director Mohammad Abdur Rab and Account and Budgeting Department General Manager Zakir Hossain all left Dhaka to head to New York, for the filing of the lawsuit, which Inner City Press will be following.

They say the Federal Reserve Bank of New York, which on January 29 was instructed by the US State Department to allow Juan Guaido to access Venezuelan accounts, will be helping its Bangladeshi counterpart to get to the bottom of the hack.  Those eyed include Philippines’ Rizal Commercial Banking Corporation or RCBC and some of its officials, and Philrem Service Corporation, casino owners and beneficiaries. Ajmalul Hossain QC, a lawyer for the central bank, is with them to file the case.

It is an interesting twist on the SDNY as venue for the money laundering and FCPA prosecution of Patrick Ho of CEFC for bribery in Chad and to Uganda - in this case, too, the money flowed through New York. Inner City Press intends to cover the case.


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