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SDNY COURTHOUSE, Dec 23 – Ari Teman, raising prosecutorial misconduct up to the day of his scheduled sentencing on December 1, learned on that day that his defense lawyer is married to a prosecutor. Now he has formally requested the return of his retainer and restitution, see below.

 U.S. District Court for the Southern District of New York Judge Paul A. Engelmayer held the December 1 proceeding. Inner City Press covered and tweeted it.

   From the first moment, Judge Engelmayer said he would not be imposing sentence in the proceeding. He expressed amazement that the conflict wasn't disclosed to him, particularly by the prosecutors usually so fast to request so-calls Curcio hearings. He discovered it as he prepared remarks about having known the lawyer.

  But a simple Internet search finds that defense lawyer Noam Korati Biale of Sher Tremonte LLP is married to Margaret Graham, who appears working an SDNY prosecutor in press releases.   

  Teman added that Biale and Sher Tremonte were specifically retained to work on Brady disclosure issues, citing US v. Nejad, US v. Ahuja and other cases covered by Inner City Press.

He also noted that since people are working at home, it is more possible for spouses to overhear each other's work.

So sentencing was adjourned, as were the Bank of America issues Inner City Press covered earlier in the day, here.

Now on December 23, Teman has written to Judge Engelmayer and others that

"On December 1, 2020, at my scheduled sentencing hearing, I first learned that my counsel at Sher Tremonte LLP (Noam Biale) was married to AUSA Margaret Graham, a prosecutor in the same office that seeks to put me in prison. I did not learn of this conflict from my counsel, nor from AUSA Kedar Bhatia (despite his awareness of this conflict). I learned of it from Your Honor. Over the past weeks, I have worked diligently to engage new counsel and I hope to formally retain Susan G. Kellman and Andrew J. Frisch shortly. (Justin Gelfand and Joseph DiRuzzo have been terminated, and have my thanks and permission to withdraw.) As the Court also knows, I appeared at my scheduled sentencing with funds sufficient to pay the full restitution alleged by the Government.  1 These funds were - and, I hope, still are - being held by Sher Tremonte. In connection with my anticipated engagement of Ms. Kellman and Mr. Frisch, I have instructed Sher Tremonte to disburse: (1) return my retainer; and (2) wire my restitution funds to Ms. Kellman’s escrow account. Despite multiple written requests, Sher Tremonte has not disbursed my funds and has not provided any explanation for their refusal to do so (in fact, they have not responded to me, nor to Ms. Kellman or Mr. Frisch, in any manner). Given Sher Tremonte’s refusal to disburse my funds (and the upcoming holidays), I am unable to meet the Court’s deadline for me to engage new counsel. Accordingly, I respectfully request that your Honor order Sher Tremonte to immediately transfer all funds held on my behalf to Ms. Kellman’s escrow account without further delay."

FN1: "As the Court also knows, on the eve of my sentencing the Government first disclosed additional evidence that casts doubt on the damages and restitution amounts claimed. This information also contradicts the testimony of Bank of America’s representative. The Government has not explained why they failed to disclose this important information to me until hours before my scheduled sentencing. There are many other disclosure violations, and new evidence, which Ms. Graham’s husband fought against us revealing to the court."

  Judge Engelmayer later on December 23 ordered: "ORDER as to Ari Teman: The Court has received the attached letter from defendant Ari Teman, indicating that he has experienced delays in retaining new counsel on account of difficulties securing the funds necessary to do so. The Court extends until January 8, 2021 the deadline for new counsel for Mr. Teman to appear. Mr. Teman's letter also states that he has terminated his trial counsel, Justin Gelfand, Esq., and Joseph DiRuzzo, Esq. For avoidance of doubt, the Court has not authorized the withdrawal of trial counsel, and it is imperative, unless and until the Court has affirmatively authorized Mr. Teman to represent himself pro se, that Mr. Teman be represented by counsel in this matter. Therefore, although the Court expects that it will grant a motion by trial counsel to withdraw upon the appearance of successor counsel, for the time being, Mr. Gelfand and Mr. DiRuzzo remain counsel of record to Mr. Teman. Mr. Teman's letter further asks the Court to direct that the law firm of Sher Tremonte return a retainer to him or transfer it to the potential successor counsel he has identified. The Court is not privy to the written or other terms of any agreement governing Mr. Teman's representation by Sher Tremonte or any retainers paid thereunder, and in any event, it is not within the Court's purview in this case to resolve that commercial dispute. The Court hopes that Mr. Teman's existing counsel will assist him in amicabl resolving any dispute he may have with Sher Tremonte. Mr. Teman's letter finally refers again to alleged Brady violations in this case. The Court reminds Mr. Teman that it has comprehensively reviewed and resolved his claims of Brady violations and has found them to be completely without merit. To the extent Mr. Teman claims that the updated restitution order that the Government submitted on the eve of the scheduled sentencing date bespoke a Brady violation, the Court, on the presen record, finds that claim meritless too. The Government acted properly in securing updated information from the victim as to the present state of its out-of-pocket loss and properly notified the Court and the defense of a calculation that modestly reduced the amount needed to make the bank whole. While the Court was dismayed by the Government's late attention to the issue and lastminute submissions, which would have necessitated a short delay of sentencing had Mr. Teman's representation issues not independently required an adjournment, there is no basis on which to claim that the Government violated its Brady obligations in connection with these events. The Court wishes Mr. Teman and all counsel a healthy and happy new year. (Signed by Judge Paul A. Engelmayer on 12/23/2020)."

  If a defendant with retained counsel runs into a conflict like this, and can't get retainer returned, how to secure substitute counsel? Watch this site.

The case is US v. Teman, 19-cr-696 (Engelmayer)

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