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By Matthew Russell Lee, Video, pics

SDNY COURTHOUSE, Sept 6 – When Ignacio Herrera came to plead guilty to 50 kilograms of marijuana on September 6 there were two U.S. Marshals waiting along with Inner City Press in the otherwise empty back rows of the courtroom of Judge Analisa Torres of the U.S. District Court for the Southern District of New York.

  The government argued that the law required Judge Torres to end Herrera's bail conditions and freedom pending sentencing the moment he said "guilty." No matter that the marijuana, and Herrera, had been in California. The SDNY prosecutors requested remand - while on the very same day quickly agreeing to nationwide travel for a white collar criminal in a reverse mortgage predatory lending scheme.

  But Judge Torres saw it differently. Herrera is the only source of financial support to his family; he accompanies his son, with pre-approval, to baseball championship games.

  At the end of a short proceeding, Judge Torres said that she found exceptional circumstances and that Herrera would remain free, at least until his sentencing in January 2020. Inner City Press will have more on this.

Back on July 24 when Wesley Monge came up for sentencing for using a firearm during an assault with a deadly weapon around the Bronx' Mill Brook Houses, he may not have known the history of sentencing Judge Analisa Torres. While imposing the mandatory minimum five years, Judge Torres with no other media in the courtroom beyond Inner City Press hearkened back to Hunts Point in the 1950s.

  She said her parents were involved in fighting for better housing, resulting in part in the opening of the Mill Brook Houses in 1957, two years before she was born. Judge Torres' sister Pamela C. Torres died of lukemia and the day care center in the Mill Brook Houses was named for her.

  With Monge's family members in the gallery, Judge Torres told them that these housing projects had been a source of hope when they were built. (Any role of Robert Moses was not mentioned). Now there is gunfire and drugs and, Judge Torres added, some people using the elevators as toilets. She urge Mr. Monge, when he gets out of jail, to become part of the solution.  Thank you Judge, he said. The case was USA v. Monge, 18-cr-611 (AT).

Back on July 9 a soft speaking defendant pled guilty to stealing cell phones from post offices in the Bronx; his plea agreement provides for a sentencing guideline of from zero to six months in prison. Other than a sidebar at the end, the proceeding was entirely open, unlike others.

   Judge Torres went through the guilty plea script: have you been threatened? Have you discussed this with your lawyer?

  Defendant Luis Feliz-Tejada three times asked for the questions to be repeated. At first he seemed to invite Judge Torres to read out loud the charges he was pleading guilty to; after conferring with his lawyer Richard Ma, he waived the public reading.

   At the end Judge Torres asked counsel to step forward. While it was unclear to Inner City Press if these will be part of the record, here's a prediction: community service at a senior center may be part of the sentence, perhaps a non-custodial sentence...

  Feliz-Tejada's co-defendant / co-conspirator Jose Hernandez-Aries has asked to move his Change of Plea Hearing to July 11 or 12. The case is USA v. Feliz-Tejada, et al., 19-cr-00183 (Torres).

An hour before, 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 in SDNY Courtroom 12A before 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.

 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.

   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.

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