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By Matthew Russell Lee, Video, pics

SDNY COURTHOUSE, July 24 – When Giorgi Lomishvili came to be sentenced for among other things selling $220,000 of hot chocolate - that is, stolen chocolate - as well as cocaine, the gallery was full in the U.S. District Court for the Southern District of New York courtroom of Judge Loretta A. Preska.

  Lomshivili's lawyer Aaron M. Rubin mentioned that he had worked for ten years with Robert Morgenthua, may he rest in peace. Judge Preska took a moment for Morgenthau, nothing that his wake was that day and funeral the next and saying, "He was a great man."

 Rubin continued to recount how when Lomshivili reached out to him to surrender and he called AUSA Adams, he got a quick call back along with the statement the Lomshivili is a good guy. And he sees to have done a lot of favors, according to the letters in the file.

  (Rubin's letter in the file takes issue with Magistrate Judge Katherine B. Forrest having doubted how Lomshivili was supporting himself during the pendency of his case, given Judge Forrest's spontaneous attempt to personally call Lomshivili's stated workplace at GP Dental Lab resulted in, Who's that? But, Rubin says, he is known there as "Gio.")

  The government added that Lomshivili's helping his friends also involved helping them get cocaine, and fencing stolen chocolate for them. Lomshivili was sentenced to 23 months and three years of supervised release - most of it apparently back in Georgia, after a removal proceeding. Judge Preska wished him well.

Back on July 9 a man not from Georgia but El Salvador came shackled into court to plead guilty, waived his right to a pre-sentencing report and be sentenced with the hope of being deported as quickly as possible. The goal of Jose Adan Martinez was to get back to El Salvador and see his 99 year old father whose health is failing.
 
  Judge Preska obliged Mr. Martinez in this. Responding to a letter from Martinez' Federal Defender Sarah Baumgartel, Judge Preska scheduled a plea and then sentencing hearing back to back on July 9, and signed an order for the Marshals. Inner City Press, the only media in the courtroom, asked how quickly Mr. Martinez might make it back to El Salvador. The answer was it depends, on how frequently the U.S. transportation is arranged.

  At the end of these proceedings in US v. Martinez, 06-cr-807, Judge Preska said, "Mr. Lee, the sentencing for Connors Person will be July 17 at noon." Inner City Press thanked Judge Preska, while still seeking about a proceeding that got abruptly sealed at 10 am at least some information, that seemingly required by the Second Circuit Court of Appeals.

  Earlier on July 9 in a court proceeding that began as open, with U.S. Marshals, the defendants' family members and even legal interns present on July 9, Inner City Press was specifically directed to leave, leaving no media or member of the general public present.

  It took place before Judge 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.

 Judge Preska's courtroom deputy followed Inner City Press out to the hall, then appeared to lock the courtroom door. No explanation was offered.

  The PACER terminal in the SDNY Press Room from which Inner City Press has been working for months 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.

 For now Inner City Press notes that 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).

  If the "finding" was at the sidebar, will that be made public? When? Watch this site.

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.

 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: again, 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.

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