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By Matthew Russell Lee, Patreon; thread

SDNY COURTHOUSE, July 23 – An anti disclosure Freedom of Information Act decision today has an echo to another exclusion of the press and public only last week. Into what was listed as a civil rights case, Washington v. City of New York, Inner City Press went in on the morning of July 16, into Courtroom 11C of the U.S. District Court for the Southern District of New York.

  SDNY Magistrate Judge Stewart Aaron immediately stopped the proceeding, which appeared to involve a dozen people at counsel tables, some in the jury box and some in the gallery.  "Sorry?" Judge Aaron asked, or said.

   "I'm a reporter," this reporter said.

   "This is a confidential settlement conference," Judge Aaron said. Having recently been told that it is asking too many questions, and given history a year ago and last week, Inner City Press left and went to the PACER terminal table in the SDNY Press Room and wrote an article - and another with more on Patreon, here. (Afterwards Magistrate Judge Aaron gave what seemed a genuine smile and nod to the Press in the hall - these restrictions on settlement conferences appear to be boiler plate, if wrongly so, in the SDNY. We'll have more on this, and on Judge Aaron's week astride the Mag court.)

 Now on July 23, the day after Inner City Press was politely asked to leave a change of plea proceeding by SDNY Judge Paul A. Crotty, Magistrate Judge Aaron has ruled, on FOIA and FARA, that "DOJ asserts that the records were withheld in full because it determined that there was no information that reasonably could be segregated. (Def. Mem. at 15 (citing Public Findlay Decl.  25  ¶¶ 24-25).) For example, DOJ explains that high-level information such as who communicated with who, or the date and recipient of external communications could suggest what the government did or did not know and when. (Id.) Similarly, DOJ argues that the number of communications between specific people could suggest the government’s investigative interests or focuses." The case is NYT v. DOJ, 18-cv-2095 (Aaron) and we hope it will be appealed.

  Here was the July 16 PACER listing, which does not say confidential: "10 AM -     1:18-cv-12306-CM Washington et al v. City of New York et al    (Nature of Suit 550  - Prisoner: Civil Rights) Settlement Conference Courtroom 11C, 500 Pearl Street, New York, NY 10007 Aaron Crump (Defendant), Belteshazzar Reid (Defendant), Bonar Moise (Defendant), Courtney Corley (Defendant), Edwin Lopera (Defendant), Frank Foes #1-12 (Defendant [T]), Frank Foes #14-16 (Defendant [T]), Frank Foes #17-18 (Defendant [T]), Frank Foes #19-21 (Defendant [T]), Gregory Lopez (Defendant), Jane Walker (Defendant [T]), John Williams (Defendant [T]), Joseph Moore (Defendant), Kirklon Morgan (Defendant), Patrick Paskett (Defendant), Robert Mcdonald Jr. (Defendant), Te-Art Jackson (Defendant), Yupeng Cai (Defendant) Timothy S Brennan representing Melissa "Missy" Mylroie (Defendant) Stephanie Marie Breslow representing Brian Sullivan (Defendant), City Of New York (Defendant), Cynthia Brann (Defendant), Edward Williams (Defendant), Sharlisa Walker (Defendant) Steven H. Goldman representing Davon Washington (Plaintiff), John Doe (Plaintiff [T]), Pariis Tillery (Plaintiff), Steven Espinal (Plaintiff [T]) Michael Goldstein representing "John" Colangione (Defendant [T]), "John" Harris (Defendant [T]), Anthony Colangione (Defendant), Anthony Coppolo (Defendant), Anthony Degonza (Defendant), Anthony Torrisi (Defendant), County of Albany (Defendant), Craig D Apple, Sr (Defendant), Damien Anzalone (Defendant), Dan Poole (Defendant), Eugene Ratigan (Defendant), Frank Harris (Defendant [T],Defendant), Jarred Jarosz (Defendant), Joseph Kelly (Defendant), Josiah Haley (Defendant), Kelly Thompson (Defendant), Mark Valvo (Defendant), Matthew Labombard (Defendant), Michael Beliveau (Defendant), Michael Grimes (Defendant), Michael Lyons (Defendant), Ryan Lawson (Defendant), Sonny Armstrong (Defendant), Thuan Ton (Defendant), Timothy Kehn (Defendant), Trent Shaver (Defendant), Vincent Adams (Defendant), William Carhart (Defendant), William Reddy (Defendant) Douglas Edward Lieb representing Davon Washington (Plaintiff), John Doe (Plaintiff [T]), Pariis Tillery (Plaintiff), Steven Espinal (Plaintiff [T],Plaintiff) John William Liguori representing "John" Colangione (Defendant [T]), "John" Harris (Defendant [T]), Anthony Degonza (Defendant), Anthony Torrisi (Defendant), County of Albany (Defendant), Craig D Apple, Sr (Defendant), Damien Anzalone (Defendant), Dan Poole (Defendant), Eugene Ratigan (Defendant), Frank Foe #13 (Defendant [T]), Frank Foe Shield #323 (Defendant [T]), Frank Foe Shield #99 (Defendant [T]), Frank Harris (Defendant [T]), Jarred Jarosz (Defendant), Joseph Kelly (Defendant), Josiah Haley (Defendant), Kelly Thompson (Defendant), Mark Valvo (Defendant), Matthew Labombard (Defendant), Michael Beliveau (Defendant), Michael Grimes (Defendant), Michael Lyons (Defendant), Ryan Lawson (Defendant), Thuan Ton (Defendant), Timothy Kehn (Defendant), Trent Shaver (Defendant), Vincent Adams (Defendant), William Reddy (Defendant) Robin Bartlett Phelan representing Melissa "Missy" Mylroie (Defendant) Katherine R. Rosenfeld representing Davon Washington (Plaintiff), John Doe (Plaintiff [T]), Pariis Tillery (Plaintiff), Steven Espinal (Plaintiff [T],Plaintiff) Timothy Patrick Tripp representing Melissa "Missy" Mylroie (Defendant) Katherine Jane Weall representing City Of New York (Defendant), Cynthia Brann (Defendant) Howard Gary Wien representing Correction Officers Benevolent Association (Intervenor) Mark David Zuckerman representing Brian Sullivan (Defendant), City Of New York (Defendant), Cynthia Brann (Defendant), Edward Williams (Defendant), Sharlisa Walker (Defendant)     ORDER SCHEDULING SETTLEMENT CONFERENCE: A settlement conference is scheduled before Magistrate Judge Stewart Aaron on Tuesday, July 16, 2019 at 10:00 a.m. in Courtroom 11C, United States Courthouse, 500 Pearl Street, New York, NY 10007."

  But despite involving a governmental agency seeking to spend public money to make amends for (or cover up) civil rights violations, in a proceeding in a public US Federal Court house, the press and public were excluded without explanation. And, after a month, no explanation has been provided for this suddenly secret sentencing:

   A sentencing of a defendant seeking time served, seemingly for cooperation with the government, was abruptly declared "sealed" by U.S. District Court for the Southern District of New York 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.

 Now on June 18 Inner City Press has 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, citing in support this its requests: sentencing proceedings are presumptively open in the Second Circuit.  See United States v. Alcantara, 396 F.3d 189, 196 (2d Cir. 2005) ("There is little doubt that the First Amendment right of access extends to sentencing proceedings."). 

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.  See United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988). United States v. Cojab specifically dealt with hearings (in that case, a pretrial hearing) conducted in the robing room. 

 Inner City Press is pursuing this because it is a precedent and trend. On June 18 affable SDNY Magistrate Judge Sarah Netburn declared a proceeding in Courtroom 5A sealed with "delayed docketing;" in her two days in the Magistrates Court this week not a single filing has been made available on PACER. There's more - watch this site.

On June 17 when 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.

  No one where 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.

  So it is both a confidential sentencing, and a confidential case?

Judge Schofield's Rules for Criminal Cases, ironically, provide that there is a presumption that all sentencing submissions are public, and that if anything is redacted only those pages with redactions can be withheld from the public docket.

  But no such distinction is possible when an entire proceeding is moved into the judge's robing room barred to the press and public, with no notice or opportunity to be heard. Inner City Press will have more on this - see also @InnerCityPress and the new @SDNYLIVE.

   Before Judge Schofield: Steven M. Calk of FDIC-regulated Federal Savings Bank was presented and arraigned on May 23 for financial institution bribery for corruptly using his position with FSB to issue $16 million in high-risk loans to Paul Manafort in a bid to obtain a senior position with the Trump administration, namely Undersecretary of the Army.

  Back on May 23 Magistrate Judge Debra Freeman accepted the government's proposal of $5 million bond with no co-signer (although that is usually required for moral suasion) and travel allowed throughout the United States (though more defendants are usually confined to the Soutern and Eastern District of NY and one other district). Money talks.

  Afterward in front of the SDNY courthouse Inner City Press asked Calk's lawyers Daniel Stein and Jeremy Margoles about Manafort saying he had misstated his financial situation to get the FSB loans. When did Calk know? They did not answer. Video here, Facebook video here.  Inner City Press' Alamy photos here.

  Now in May 28 letter to District Judge Lorna G. Schofield, the government has requested the motions directed of their indictment of Calk be filed by July 12. Judge Schofield granted it only in part, saying that by June 21 Calk "shall file a pre-motion letter with a briefing description of any motion(s) he intends to file." While the OCC has yet to sufficiently answer, and is trying to hinder Inner City Press' reporting, we will stay on this case.

  On May 23, still from the SDNY courthouse covering other cases including one involving the death penalty, Inner City Press reported finding no U.S. Home Mortgage Disclosure Act data for "Federal Savings Bank." But there's more.

The Federal Savings Bank's website, while providing a generic link to the FDIC, and a statement "Member FDIC," has no link for the U.S. Community Reinvestment Act. (Nor does it mention the indictment of Stephen Calk, simply listing his brother John Calk now as CEO and Vice Chairman. Who is the chairman?)

  It lists a loan production office on Avenue J in Brooklyn, and two deposit taking braches in Illinois. Did it see some exemption from the CRA and other consumer protection laws? From fair lending laws?

  Earlier on the morning of May 24 Inner City Press asked the FDIC, "Having covered yesterday's arraignment of the Chairman of The Federal Savings Bank in the SDNY courthouse, including the FDIC's involvement, I checked the bank's website and found "Member FDIC" but no mention of the Community Reinvestment Act."

  The FDIC's spokesperson David Barr, to his credit, responded quickly, writing to Inner City Press: "The Federal Savings Bank, Chicago, is regulated by the Office of the Comptroller of the Currency. They would be responsible for CRA and regulatory oversight. You should contact the OCC for more information."

  Now the OCC under Comptroller Joseph Otting has done everything possible to block the release of information, denying FOIA fees waivers and expedited treatment, refusing comments. But for now online the OCC has said this about The Federal Savings Bank: "While TFSB originated a substantial majority of its loans outside of its AAs; the bank’s business strategy is to operate as a mortgage banking entity with a nationwide presence and market place. Taking the bank’s business strategy into consideration the bank’s performance under this lending criterion is deemed reasonable." Reasonable? Bribery, too, seems to have been part of its business strategy, right under the nose of the OCC of Otting.

  Before 2 pm on May 24 Inner City Press in writing asked Otting's OCC: "This is a Press question for the OCC, from Inner City Press... Please confirm that The Federal Savings Bank is subject to HMDA, and/or if it is below a threshold, as I can find no data in its name on FFIEC.gov. Also, please today provide as an OCC response to the Press this OCC-regulated bank's CRA public file and other information in the OCC's possession concerning the bank's CRA and fair lending performance.   Is it normal for a bank not to mention these things on its website, nor to provide any link to its actual regulator, the OCC, but only to the FDIC?     Please explain what steps the OCC is taking beyond Stephen Calk no longer being the CEO. What about his brother?"

  More than three hours later, even to the questions at the end, the OCC had only provided this:   "We are reviewing your questions, but we may not be able to respond by your deadline.     Regards,  Stephanie        Stephanie Collins  Manager, Media Relations  Public Affairs Operations  Office of the Comptroller of the Currency." This is the same OCC which has delayed FOR MONTHS providing basic information about a merger it has now already rubber stamped.

  On the morning of May 28 Inner City Press received from the OCC a statement that The Federal Savings Banks is subject to HMDA - how they are listed in the HMDA database remains a question - and this: "Question:  Is it normal for a bank not to mention these things [CRA and HMDA] on its website, nor to provide any link to its actual regulator, the OCC, but only to the FDIC?  [OCC answer:] This question is best directed to the bank."

  So wait: Otting's OCC leaves it entirely up to the banks it ostensibly regulates whether to mention on their website and presumably branches CRA, HMDA or even the OCC where consumers could complain? We'll have more on this.

  Stephen Calk was quoted, at least in 2012, opposing regulation: "As Mr. Stephen Calk writes in the September 7, 2012 edition of Origination News: “Basel III is designed to level the playing field among major banking institutions that operate internationally. Force-feeding these same rules to community banks in the United States is unnecessary and in fact counter-productive, particularly in the current economic environment.” Basel III is one thing. But no Community Reinvestment Act?

The Federal Savings Bank lists locations - and bankers - in       Arizona - Scottsdale California - Irvine Colorado - Fort Collins Delaware - Selbyville Florida - Sarasota Illinois - Chicago Illinois - Lake Forest Illinois - Oak Brook Illinois - Park Ridge Indiana - Bloomington Indiana - Indianapolis Kansas - Overland Park Louisiana - Laplace Maryland - Annapolis Maryland - Timonium CD Massachusetts - Lawrence New Jersey - Hackensack New Jersey - Lakewood New York - Brooklyn New York - Melville New York - New York New York - Queens North Carolina - Raleigh Ohio - Columbus Rhode Island - South Kingstown Tennessee - Nashville Virginia - Alexandria Virginia - Fredericksburg Virginia - Newport News Virginia - Richmond Virginia - Vienna Virginia - Warrenton...  We'll have more on this.

  In the indictment press release, FDIC OIG Special Agent-in-Charge Patricia Tarasca said, “Today’s indictment charges Stephen Calk with misusing his position as Chairman and CEO of a bank for his own personal gain.  The FDIC Office of Inspector General remains committed to investigating cases where bank officials cause multimillion-dollar losses to a financial institution and undermine its integrity.” (The FDIC stands to be the lead regulator of BB&T whose money laundering enforcement action was just terminated by the Federal Reserve to facilitate merger with Suntrust, click here for that and Inner City Press' FOIA request and appeal.)

  The indictment was unsealed the day after President Donald J. Trump lost his bid to stay the House of Representatives' subpoenas to two other banks, Capital One and Deutsche Bank. After the May 22 ruling in Trump v. Deutsche Bank by SDNY Judge Edgardo Ramos, Trump lawyer Patrick Strawbridge headed to the elevators in the windowless lobby outside the courtroom.

  He was disinclined to comment and even take questions from the press. When reporters got on the elevator with him, he got off, saying sacrastically but not bitterly, Much as I'd like to be asked questions in the elevator...

   Downstairs in front of the Thurgood Marshall courthouse there were demonstrators will a long Impeach Trump banner and the small black Congress Has A Right To Know signs, three of which had been quickly raised in the courtroom, and just as quickly taken down when Judge Ramos requested it.

  The SDNY Court Security Officers spoke to the sign holders but did not eject them, during the 10 minute recess Judge Ramos took to put the finishing touches on his 25-page decision.

   TV crews from CNN and Univision were set up across the street, and a gaggle of photographers set up on the sidewalk to wait for Strawbridge and the House of Representatives' lawyer Douglas Letter.  As time passed others passing the courthouse, and coming out of it, stopped to ask as so often happens, Who are you waiting for?

   While few had heard of Strawbridge and the House lawyer named Letter, the mention of Trump drew a range of reactions. The sight of long lens cameras -- Inner City Press had this day retrieved it, from the seemingly overflow Press Room in the basement of 40 Foley Square -- attracted others with cases in the SDNY.

  Accompanied by a trio of children in wheelchairs on a day when the disabled entrance on Pearl Street to the Thurgood Marshall courthouse was closed were lawyers in Abrams et al v. Carranza, one in a series of Federal lawsuits against campaigning NYC Mayor Bill De Blasio's Education Chancellor RIchard Carranza. They had a flier and expressed hope that SDNY Judge Alison Nathan would, as indicted, issue a ruling in their case within the week.

  Other litigatants were less media savvy or directed. Those in a criminal trial before Judge Vernon Broderick admitted the case made it hard for even them to stay awake -- Inner City Press has tried several times -- but noted that the U.S. Attorney's office promotes the prosecution each morning in an e-mail.

  The plaintiff side in an employment discrimination trial in front of Judge Valerie Caproni came out (the defense may have been less willing to approach the press), then Judge Broderick himself, down to earth as ever. It was growing late.

  To put its camera back in the 40 Foley press room, Inner City Press climbed the stairs only to be told, We close at five. Explaining that there is a Press Room next to the cafeteria and that the Trump case had done later was at first to no avail. Finally a supervisor was called who did not acknowledge any right to enter, but said he would allow it this one time. We may have more on this: even in the small strokes, press access rights are important, particularly in a courthouse.

Earlier, before issuing his ruling Judge Edgardo Ramos had asked the lawyers for the two banks that got the subpoenas, Deutsche Bank and Capital One, if they wanted to speak. They did not. This even as House counsel Strawbridge detailed Deutsche Bank's long history with money laundering (and theft during the Holocaust, which didn't come up). Capital One is a rough, too, on predatory auto lending and the Community Reinvestment Act. But the banks lay low.

  Now under Judge Ramos' 25-page ruling, the banks become required to respond to the subpoenas in seven days, on May 29. That's the time during which the House has agreed not to enforce the subpoena, and the time during which Trump's lawyers seem certain to file an appeal and ask again for a stay from the Second Circuit Count of Appeals higher up, in both senses, in 40 Foley Square.

Earlier still in the May in the SDNY, Congressman Christopher Collins (R-NY) waived his right to be present for a May 3 hearing in the criminal insider trading case against him held past 5 pm in the SDNY courtroom of Judge Broderick. On May 10, Judge Broderick started on l'affaire Collins at 2 pm, after a case against BuzzFeed (Inner City Press coverage here). Early in the proceeding, before two shackled inmates were led in leading to a brief suspension of the white shoe SEC Congressman matter, Broderick made a joke about Donald Trump and evasive legal moves. I'm not going there, said one of the participants in Collins, who was an early endorser of Trump. Broderick said, "I should have either - but it is what it is."

   Three hours later, during which Inner City Press in full disclosure went one story down in the courthouse to cover a Fatico hearing about threats in the MCC, Judge Broderick was setting the time for Collins' lawyers to make motions. He arrived on four weeks after he rules on discovery, with the SEC to provide whatever he directs to the defense one week after the ruling. I'm not saying you're going to get anything, Judge Broderick said. Collins' lead lawyer said he is a optimist. More on Patreon; watch this site. 

  Collins' team of lawyers have made a slew of suggestions to Judge Broderick on what discovery to seek from the U.S. Attorney's office, from communications with the SEC to information about real estate, Cameron Collins and Lauren Zarsky and their sales of Immunotherapeutics stock after MIS416, aimed at secondary multiple sclerosis, failed the Drug Trial and Rep Collins made his calls from the White House Congressional picnic.

   On May 3 Judge Broderick was urging wide disclosure by the government, whether characterized as 3500 material or under Brady or Giglio. The notes to be produced, he said, didn't have to been entirely contemporaneous. He had a series of questions for the U.S. Attorney which he did not get through as it approached 6 p.m. and his courtroom deputy had gone for the day.

  Collins' lead lawyer from BakerHostetler, Jonathan R. Barr, directed Broderick to a decision by SDNY Judge Jed Rakoff during the Gumpta case, and Broderick said that he would read it. He confessed he had himself looked up applicable cases on Westlaw, adding that he might have missed some cases.  This case is  USA v. Collins, et al., 18-cr-00567 (VSB). More on Patreon, here.

  Judge Broderick told Collins' lawyers to expect to come back in a week's time on Friday, May 10. One of them said he would only be returning to the United States that morning; another said that he then would be leaving for the same place his colleague had been: Argentina.

 Thus is big money, and big politics, law done in the SDNY.

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