SDNY COURTHOUSE,
Oct 30 – Neil Cole, the brand
manager charged with financial
chicanery was freed on $1
million bond on December 5,
2019 and allowed to travel
throughout the United States
by agreement of the US
Attorney's Office, contrary to
the "SDNY and EDNY only"
restrictions they routinely
place on less affluent
defendants.
SDNY Magistrate
Judge Barbara Moses accepted
the agreed bail conditions,
and said that they can be
appealed or asked to be
modified before SDNY Judge
Edgardo Ramos to whom the case
was assigned.
On October 6,
2021, the jury trial began and
Inner City Press live tweeted
Day 1 here,
podcast here,
vlog here.
On October 25, Cole himself
took the stand, see below.
After starting
deliberations on October 27,
the jury at 2:30 on October 28
said they are at an impasse
and unable to reach a verdict
that day - they left at 3 pm
and will resume on Friday,
October 29. From the cryptic
note, it seems there may be
more than one juror
considering acquittal, at
least on some counts.
Near 2pm on
Friday, October 29, the jury
sent a note that Juror 4 would
not return on Monday. But on
Monday, November 1 a partial
(not guilty) verdict, on the
conspiracy counts. Later, the
jury returned deadlocked on
eight other counts, triggering
a mistrial, as "multiple
jurors" were still "standing
strong in their convictions."
about the case. Inner
City Press asked, Will Cole be
retried on securities fraud,
making false filings with the
SEC and improperly influencing
audits?
On November 12,
the US indicated it had not
decided. It asked Judge Ramos
to exclude Speedy Trial Act
time until January 15, to by
then inform the Count how it
wishes to proceed on Counts
Two Through Nine.
On January
14 the US wrote to Judge Ramos
again, to ask to put its
decision off until January 18.
It was granted. Then on
January 18, the US wrote
again, asking until January 21
"too allow discussions between
the parties to continue."
On January 21,
the US wrote it to say "it
intends to seek a retrial" on
Counts Two through Nine.
On October 30,
2022, on the eve of the
re-trial, the US specified its
opposition to Cole's
subpoenas: "The Court’s prior
opinion in this case did not,
however, hold that all
impeachment materials sought
by trial subpoenas were
necessarily “admissible”
within the meaning of Nixon,
as Cole now argues. Indeed,
this Court’s prior opinion
cited United States v. Skelos,
15 Cr. 317 (KMW), 2018 WL
2254538 (S.D.N.Y. May 17,
2018), United States v.
Avenatti, 19 Cr. 373 (PGG),
2020 WL 508682 (S.D.N.Y. Jan.
31, 20220), and United States
v. Percoco, 2018 WL 9539131
(S.D.N.Y. June 14, 2018) to
support its decision. See ECF
Doc. 68 at 7. In each of those
cases the court acknowledged
and applied the admissibility
prong of the Nixon analysis to
subpoenas that called for
impeachment material. Skelos,
2018 WL 2254538, at *2 (Judge
Wood affirmed that materials
sought under Rule 17 “must
themselves be admissible at
trial,” and “cannot be used to
obtain documents that would be
excluded on hearsay grounds or
would otherwise be
inadmissible as evidence at
trial.”) (quotation marks
omitted); Avenatti, 2020 WL
508682, at *3, *6; Percoco,
2018 WL 9539131, at *2
(observing that trial
subpoenas for impeachment
material were not
categorically improper but
“nothing in Nixon suggests
that Rule 17(c)(2) should be
read as carte blanche to serve
a subpoena that does not seek
specific, admissible
evidence.”). Based on the
Court’s prior ruling, Cole’s
trial subpoenas are not infirm
merely because they call for
impeachment materials, but
they still must satisfy the
admissibility prong of the
Nixon standard. The Subpoenaed
Materials Are Not Admissible
The subpoenaed materials will
not be admissible because Cole
may not introduce another
person’s characterization of
Horowitz’s statements to
impeach Horowitz unless
Horowitz has reviewed and
adopted the characterization."
Full filing on Patreon here.
Watch this site.
Back on October
29, 2021 Inner City Press live
tweeted here:
jury note says
they must leave at 3, jurors
standing firm, and Juror 4 not
returning next week. They ask
if can render verdict on some
not all charges. "If same
jury," Judge Ramos says.
Judge Ramos: I
don't know if we can have one
jury reach decision on some
charges and other jury [with 1
alternate added] on others.
I'm thinking, No. Do you have
Allen charges ready? Counsel:
It's too early for that.
[It's 1:46 pm and jurors are
leaving at 3...]
Judge
Ramos: On Juror 8, the
employer emailed and asked if
we will be done by Tuesday. I
emailed back that we are not
done but hoped to be done
today... We have two
alternates out there,
somewhere.
Jury
entering! Judge Ramos: You're
asked if you can reach a
unanimous verdict as to some
counts but not others. But we
don't want a partial verdict
with this 12, and another with
another 12. Juror 4 [he is
named, but we don't], please
some to sidebar
After a long
sidebar, Judge Ramos tells
jury: Yes, you can reach
unanimous verdicts on some
counts. But we'd like you to
continue deliberating on
others. So, go and continue.
Jury exits.
Judge Ramos
is asked to them them another
note. Defense suggests: "Each
separate count must be
evaluated separately based on
the evidence or lack of
evidence." Judge Ramos does
it. US has not
objection. Judge Ramos:
This will be provided to the
jury. Coverage will continue
#CourtCaseCast
On October
7, cooperator Seth Horowitz
spend the whole day on the
stand, still on direct. Inner
City Press live tweeted here.
On October
8, the cross examination of
Horowitz began, doggedly.
Inner City Press live tweeted
here.
On October 12,
after Columbus Day, the cross
examination of Horowitz
continued but did not finish.
Inner City Press live tweeted
here
and below.
On Sunday,
October 17 the US Attorney's
Office put in an argument for
the admissibility of exhibits
including Ethan Cole's e-mail
to Jared Margolis about
offsetting Iconix Korea
with... Rocawear. Full
contested exhibit on Patreon here.
On Monday
October 18 Cole's lawyers
responded that Ethan Cole was
not a co-conspirator, and
filed Horowitz' FBI's
interview as 3500 material.
3500 material / FBI interview
notes now on Patreon here.
On October 22,
the trial churned to the end
of the government case, with
the defense to put on its
first witness on Monday, but
still not providing the name.
Inner City Press live tweeted
here.
On October 25,
Neil Cole took the stand and
Inner City Press live tweeted
here.
On October 26
here's from the US Attorney's
Office summation, which Inner
City Press live tweeted here:
Closing arguments
in US v. Neil Cole: Assistant
US Attorney asks why
"visionary CEO of Iconix"
agreed to pay $2 million to a
consultant for no work.
#RoundTripping.
AUSA: Cole signed
the invoices to sent $5
million back. This is a
catastrophic fact. We saw him
yesterday, criticizing
people's costs at the Super
Bowl. And yet he's signing
fraudulent $5 million in
invoices.
AUSA:
Iconix had already paid for
this marketing video (Zoo York
Takes Yankee Stadium, on
YouTube here;
DX 415) before the paid the
invoice.
AUSA: Neil Cole
did it.
Judge
Ramos: We're going to end,
because the defense summation
would take us past 2:40 pm.
Tomorrow afternoon- you'll be
able to stay past 2:40 if you
want. See you tomorrow.
On the morning of
October 27, Neil Cole's lawyer
offered this summation, Inner
City Press live tweeted here:
Cole's lawyer:
Iconix's servers saved all
emails, even if Horowitz says
he deleted them. "Horowitz
made it up and they know it.
If he'd lie about that, he'd
lie about anything. And that
should make you doubt their
case."
Cole's lawyer:
"They're dredging up things
from 22 years ago. [Candie's
$75,000 SEC settlement]
Give me a break.
Horowitz just wants a lighter
sentence. He claims he wrote
in code to himself. It's
absurd." Cole's lawyer's
closing is closing: "Neil Cole
did not commit any crimes. We
ask you find him not guilty."
Judge Ramos:
Thank you Mr. Tarlow.
Note: in open
court, Cole's lawyer said he wants to cross
examining cooperation witness Seth Horowitz
about concealment of prostitution related
activities. Judge Ramos said that question
will not be allowed - and when the Assistant
US Attorney asked to seal the transcript,
Judge Ramos agreed. But it was in open
court. Can you say, #Whorowitz?
On September 30
in an in-person final pre
trial conference, Cole's
lawyer argued that hearing
"$28 million" would be
prejudicial. The AUSA said it
show motive, and Judge Ramos
agreed, citing US v.
Quattrone, 441 F.3d 153,
179-80 (2d Cir. 2006).
Inner City
Press will continue to cover
the trial.
Watch this site.
The case is US
v. Cole, 19-cr-869
(Ramos).
***
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