SDNY COURTHOUSE,
Nov 8 – 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 first jury trial
began and Inner City Press
live tweeted Day 1 here,
podcast here,
vlog here.
After a mistrial, a re-trial
has opening argument on
November 2, 2022. Inner City
Press live tweeted here
and below.
On November 3,
Iconix former general counsel
testified that Cole was a
"tyrannical" control freak,
over multiple objections, here.
On November 4,
after an investor, cooperator
Seth Horowitz took the stand.
Inner City Press tweeted here.
On November 8, in
an otherwise empty courthouse
on Election Day, the cross
examination of Horowitz began.
Inner City Press live tweeted
here:
Assistant US
Attorney: Mr. Horowitz, does
this invoice back up the claim
of $1.9 million of work by GBG
in Southeast Asia?
Horowitz: No.
AUSA: Why did
Iconix pay the invoice?
Horowitz: As part
of the earlier deal... Now
with jury on a break, Judge
Ramos asks Asst US Attorney,
Is there an end in sight?
AUSA says the
direct will continue such as
to allow only a bit of cross
today. Also an issue
about admissibility of Wilmer
Hale's invoices and legal
fees. Thread will continue
They're
back. AUSA: Mr. Horowitz, what
did Neil Cole tell you?
Horowitz: That we wouldn't get
the give-back payments under
Peanuts anymore, because it
might draw scrutiny from the
Schultz family?
AUSA: The Schultz
family of the Peanuts brand?
Horowitz: Yes.
AUSA: What did
Neil Cole tell you then?
Horowitz: That we could no
longer do the payments under
the Peanuts brand.
AUSA: Was the
Peanuts invoice ever paid?
Horowitz: No, it would have
drawn scrutiny. Ethan Cole
dropped off two folders at
Iconix
AUSA: Walk the
jury through it. Horowitz:
Ethan Cole handed me the
folders and said, We don't
care which ones you pay, just
pay us. Cooperator Horowitz:
When I went into Neil Cole's
office, he was removing his
name from having negotiated
the deals, and putting in
other people's names.
Now during 2d
jury break, Cole's lawyer says
a curative instruction is
needed, that the prosecutors
implied to the jury that
consulting a lawyer
after an SEC inquiry shows
consciousness of guilt. AUSA
says he'll think about it over
the break, consider language.
They're back, and
*still* on direct examination.
AUSA: Mr. Horowitz, after you
resigned did you take another
job? Horowitz: Yes, at Baked
by Melissa. AUSA: What's that?
Horowitz: A bite-sized cupcake
company. I didn't tell them
about Iconix.
AUSA: When you
were at Baked by Melissa, did
you start meeting with Federal
prosecutors about this case?
Horowitz: Yes.
AUSA: Did you
tell Baked by Melissa?
Horowitz: No. AUSA: Were you
terminated by Baked by
Melissa? Horowitz: Yes. After
I pled guilty to fraud.
AUSA: Did you
enter into a cooperation
agreement with our office?
Horowitz: Yes. AUSA: Why
did you plead guilty?
Horowitz: Because I am guilty.
I could face 70 years in
prison - or less, if I provide
testimony, telling the truth.
Then SDNY will write to the
judge
AUSA: No
further questions. Judge
Ramos: Cross examination.
Cole's lawyer Sean Hecker: You
met with the government 40 or
50 times, correct?
Horowitz: That's
correct. Hecker: What were the
names of the agents? Horowitz:
There's one here in the back
of the courtroom Hecker: You
did mock cross examination,
right? Horowitz: We prepared.
Hecker: If they
didn't like your answers, you
discussed other ways of
answering, right? Horowitz:
True. Hecker: You were
the lead negotiator on SEA-2
and SEA-2, correct? Horowitz:
Yes.
Hecker: You faced
prosecution and you had a
choice, right? Horowitz: That
is correct. Hecker: You
decided to try to work your
way out of the problem by
cooperating?
Horowitz: That's
partly true. Hecker: You
believe cooperation is your
best hope, yes? Horowitz: Yes
Hecker: And
you're only testifying against
Neil Cole, this is your only
shot, right - you're hoping
for that letter, yes?
Horowitz: I don't know. I hope
so. Hecker: You have to give
substantial assistance, right?
Horowitz: That is the phrase.
Hecker: You felt
Mr. Cole was putting you down
to make himself look stronger,
right? Horowitz: I believe
that is true.
Hecker: Show the
witness DX 1023 at A1. This is
an email you drafted, yes?
AUSA: Objection!
Judge Ramos:
We'll break for the day.
The trial will
continue.
In the first
trial, back on October 25,
2021 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.
On January 21,
2022 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."
On November 1,
after the 15 jurors (including
three alternates) were picked
in two full days of jury
selection and left for the
day, the sides fought about
slides for their openings.
Inner City Press live tweeted
it here:
For US v Neil
Cole retrial, now with jury
selected & gone for the
day, the arguments start.
Defense:
The negotiations were led by
Mr. Horowitz. The deal didn't
close until Oct 1. I'll hand
up the unredacted version.
Judge Ramos: I
don't understand the objection
about it being too late in the
process. It's not hearsay. I
will allow it. Is the next one
about government cooperator?
AUSA: It's a big red slide, to
say, Horowitz is a bad person.
Defense: We can change the
color.
Judge Ramos: Why
don't you. I'll allow the
slide. The next is an
organizational chart. What's
the objection? AUSA: We
wouldn't have a slide saying
"GUILTY" - but if they want to
try it.... Defense: I don't
get it. Are they saying our
slide means Not-guilty?
After
estimates of 20 and 35 minutes
for opening statements, Judge
Ramos says, Try to not go
beyond, I'll look very
unhappy. Lawyers laugh -
politely or nervously. When
Horowitz: Direct this week,
cross next.
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...]
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.
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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