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By Matthew Russell Lee, Patreon, Video, pics

SDNY COURTHOUSE, July 11 – Argentina's Attorney General was in New York on July 11 to watch his outside counsel from Skadden Arps try to get the longstanding claim of Petersen Energia SA against YPF and his country dismissed by U.S. District Court for the Southern District of New York Judge Loretta A. Preska.

 But early in the argument, which was sandwiched between more mundate criminal cases, Judge Preska opined that the Skadden pleadings were largely for delay. Judge Preska repeatedly told Skaddan lawyer Maura Barry Grinalds to calm down, as the latter read heatedly from the YPF prospectus.   

 At issue is whether claims under the bylaws of YPF can only be heard by courts in Argentina. Plaintiffs lawyer Mark C. Hansen, formerly of the SDNY U.S. Attorney's Office, said while he doesn't speak Spanish he experts tell him that this is not the case.

  He asked rhetorically why the issue is only being raised four years into the litigation, which has done to the Second Circuit Court of Appeals and back. The case is Petersen Energia Inversora, S.A.U., et al v . Argentine Republic, et al., 15-cv-02739 (Preska).   

  Ultimately, Judge Preska told the parties, including YPF represented by a calmer Cravath lawyer, to submit a list of issues. She told Hansen that a motion for partial summary judgment will not be entertained at this time. Then she invited the parties, all of them, into the robing room to talk settlement.   More on Patreon, here.

  But there were too many of them: the robing room was too small. After holding a short on-the-record proceeding on the medical condition of prisoner Pedro Olivo between Assistant US Attorney Frank Bolsamello and defense attorney Avraham Chaim Moskowitz to whom Judge Preska apologized for keeping them waiting, she invited the Argentines and Team Petersen into the jury room, the same jury room in which UN briber Patrick Ho was convicted in December 2018. Inner City Press will continue to follow these cases. 

 On July 9 in the SDNY 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. [While that's still true, in fairness partial update here.]

  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.

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.

 Since 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. United States v. Cojab specifically dealt with hearings (in that case, a pretrial hearing) conducted in the robing room. 

On June 17 when Judge Schofield 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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