Case 1:19-cr-00830-AT

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-x

UNITED STATES OF AMERICA, New York, N.Y.

v. 19 Cr. 830(AT)

TOVA NOEL and MICHAEL THOMAS,

 Defendant.

X X

Conference

January 30, 2020

11:00 a.m.

Before:

HON. ANALISA TORRES,

District Judge

APPEARANCES

GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York

BY: JESSICA R. LONERGAN
NICOLAS T. LANDSMAN-ROOS
REBEKAH A. DONALESKI
Assistant United States Attorneys

FOY & SEPLOWITZ, LLC
Attorney for Defendant Noel
BY: JASON E. FOY
ERIC SAGARRA

LAW OFFICES OF MONTELL FIGGINS
Attorney for Defendant Thomas
BY: MONTELL FIGGINS

SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300

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Case 1:19-cr-00830-AT

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(Case called)

THE COURT: Good morning. We are here in the matter of the United States v. Tova Noel and Michael Thomas.

Would you make your appearance, please.

MS. LONERGAN: For the government, Jessica Lonergan. With me at counsel table are my colleagues Nicholas Roos and Rebekah Donaleski. Good morning, your Honor.

MR. FOY: May it please the court, your Honor, Jason Foy, for Ms. Tova Noel, standing to my right. Also with me at counsel table is associate counsel Eric Sagara. Good morning, your Honor.

MR. SAGARA: Good morning, your Honor.

MR. FIGGINS: Good morning your Honor. Montell Figgins on behalf of Michael Thomas, representing my client, who stands to my right.

THE COURT: I understand that the defense is requesting that I adjourn the trial because of the volume of discovery. I will hear you on that.

MR. FOY: Yes, your Honor. We are asking that the trial date of April 20, 2020, be moved to sometime in October or a date thereafter that's convenient to the court. The reason for the request is because it is necessary in order to 23 provide an adequate and effective assistance of counsel. Why? Yes, because of the voluminous discovery. But also because of the amount of time it is going to take for us to conduct our

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SOUTHERN DISTRICT REPORTERS, P.C.

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own investigation, which can't really fully get started until we appreciate what information has already been provided. That's really the crux of the reason.

Now, I noted in the government's opposition, although they agree that some adjournment is warranted, I guess the issue is of how long the adjournment should be. The defense is in the best position to assess how much time we need to perform our important function on behalf of our clients. I say that because we are not making a request for the purpose of simply delaying the proceedings. We are doing it because it is actually necessary to accomplish our goals as counsel.

Also, which I did not reference in my letter, is it also takes into account my trial schedule, at least why my request was. Last week, I was scheduled to start a trial before Judge Ramos in 40 Foley Square in July. And part of what I discussed with Judge Ramos in setting that trial date was that I knew that this trial may need to be accommodated in some way. He selected July 20 for that date mostly because of the court's availability at that time. That's also part of the reason. And in that particular case, my client's been incarcerated for almost two years. He is facing a mandatory life sentence. So I do need to spend some of my time getting ready for that as well, and I expect that to be our trial date.

THE COURT: What's the date? MR. FOY: What's the date?

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THE COURT: In July.

MR. FOY: July 20 for that trial.

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So really it's so we can perform our functions, and of course there are other things going on as far as responsibilities, and that would give us sufficient time to be ready. It is not an unreasonable request. To say a case that started on November 19, 2019, to be tried in less than a year I don't think is an unusual circumstance. I don't think anyone can say it is delayed justice. My client, who is free, she is not incarcerated, so we don't have any of the interests of an incarcerated defendant who wants to get a speedy trial. It is necessary, not an option, not just something we just feel like. This isn't about us laying back, taking our time. It's about doing a diligent job. In order to do that, we do need the time, and I would ask that you grant the request.

THE COURT: How long is the Judge Ramos trial? MR. FOY: The government represented that they expect it to be about two weeks.

THE COURT: Starting on July 20 you said, yes? MR. FOY: That's correct.

MR. FIGGINS: Your Honor, I also join in the motion. The court has had a chance to read my letter with respect to requesting an adjournment. It is very early for us at this point even to have a full appreciation as to what's going to happen in this matter. I have only had the discovery for

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approximately two weeks. It's going to take -- I think there was at least 25 witness statements that we not only need to review, but then we need to try and follow up and maybe contact those witnesses. There are some people who were incarcerated, may have been released. There are numerous things that must be done in terms of at least us tracking down specific details that our clients are demanding that we do in their defense.

It took the federal government 90 days to investigate this case and to come up with an indictment. Accordingly, a law firm with one or two attorneys, without the resources of all the federal agencies, it is going to take us more than 90 days to do the same amount of work. So I don't think that it is an unreasonable request.

Not to mention, I believe that if the court were not to grant some type of an adjournment, we are going to find ourselves back here again, but the defense will just be in a better position to give you more specifics as to why we need more time á la maybe we can't track down this witness or we spoke to this witness and now we have to find another one. There are numerous things like that that I think would come about, and that's why we would try and suggest to give the court a bird's eye view of that early on, so that maybe we can delay -- or avoid having to come back repeatedly just to make those additional requests.

Additionally, your Honor, I do believe that there is a

SOUTHERN DISTRICT REPORTERS, P.C.

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high likelihood that I'm going to file a motion to dismiss the indictment based on selective prosecution. I do believe that if certain portions of that motion are granted, then that's going to entitle the defense to additional discovery that we haven't even received yet.

So with the request that we are asking for, we are also having an opportunity to kind of see -- I know kind of the things that are going to happen or potentially will happen, so instead of just trying to come back here three or four times to say this is happening, we can kind of just do this now and realize that that motion will probably be filed. That may create other issues with respect to discovery.

Also, your Honor, I have also made a specific request under Rule 16 that the defense wants whatever investigation was done and whatever information there is that is discoverable with respect to the Inspector General's report. It is my position that we are entitled to that information. It is an investigation of the same incident. It is an investigation of the circumstances with which my client is being charged. With that being said, I do think that we are entitled to whatever information was generated in those reports, so I believe that also is going to cause a delay in the trial wherever we go with that issue.

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THE COURT: We already addressed that the last time.

(Pause)

SOUTHERN DISTRICT REPORTERS, P.C.

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THE COURT: I will hear from the government.

MS. LONERGAN: Yes, your Honor. As we put in our written submission to the court, we agree that a brief adjournment is appropriate, but we do not think that a six-month adjournment is necessary or warranted.

First, the amount of discovery in this case is not particularly voluminous nor complex in light of the cases tried in this district; and, in addition, the further investigation, I want to focus the court on the facts that are going to be at issue in this trial occurred over a 14-hour period. It is true that, as part of our discovery, we provided information outside of that 14-hour period, anticipating many of the types of requests that the defense counsel has already begun to make. But again, your Honor, this is a very focused, single-incident indictment that is about what happened over the period of 14 hours. A much larger investigation about, for example, the working conditions at the MCC, it is just not relevant to what is going to be the issues on trial here.

I want to also touch on something that plaintiff said about the need to interview witnesses. As we explained to the 21 court, we have done something that's unusual here, which is that we have provided witness statements with our initial discovery almost four months in advance of trial. As the court is aware, we typically provide what we call 3500 material much closer to trial. So the need to review those witness

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SOUTHERN DISTRICT REPORTERS, P.C.

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Case 1:19-cr-00830-AT

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statements and interview additional -- interview those witnesses, that can't possibly weigh in favor of an adjournment when in fact the defense counsel has so much more time with those materials than they would in a typical trial schedule where they might have those materials just a few weeks before trial, your Honor.

So for those reasons, we think that we are hard pressed to identify areas of additional investigation that would touch on the 14-hour time period that is going to be at issue in this trial; and so, for those reasons, while we agree that a short adjournment is warranted, that six months is not required. We do understand of course that that may be difficult with Mr. Foy's trial schedule with having the July trial, but it seems like there may be a possibility of putting this trial before Mr. Foy's July trial and still giving him sufficient time to prepare for both.

THE COURT: And how long do you expect this trial to go?

MS. LONERGAN: Your Honor, if this trial is confined to that 14-hour time period, setting aside jury selection, I can't imagine it lasting more than a week.

THE COURT: Okay. The trial is set for June 8. With respect to the motion to dismiss, the motion is due on March 9, opposition is due by April 6, and the reply is due on April 20.

SOUTHERN DISTRICT REPORTERS, P.C.

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Are there any further applications?

MR. FIGGINS: Yes, your Honor. You said we dealt with the issue with respect to the Investigator General's report.

This court has never addressed it at all. You never said anything with respect to that. So I just want to make that clear. Do I need to file a motion with respect to that? THE COURT: You may file a formal motion.

MR. FIGGINS: Thank you.

THE COURT: Anything further?

MR. FIGGINS: Your Honor, can I have an additional two weeks? Can we push the motion schedule back at least an additional two weeks? Because I have my 80-something-year-old relative coming to visit me from February 23 through March 1, so I kind of won't be working during that time. So if you could just make it like -- if you could make it something around like the 18th or the 21st.

THE COURT: All right, then. You can file your motion by March 20.

How long does the prosecution need to oppose? MS. LONERGAN: Your Honor, three weeks, please. THE COURT: So the prosecution will file opposition on April 10, and the reply will be April 24.

Is there anything further?

MS. LONERGAN: Yes, your Honor, at this time the government moves to exclude time between now and the trial

SOUTHERN DISTRICT REPORTERS, P.C.

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k1u2NoeC kjc date, which has now been set for June 8, for the following reasons:

It will allow the parties to discuss potential pretrial dispositions, to allow defense counsel to review the discovery, make and file motions, the court to resolve those motions, and for the defense counsel to conduct the additional discovery that they have been discussing today in court.

MR. FOY: Your Honor, I don't oppose the government's position.

I wanted to just go back to one thing. I understand you have ruled. I accept that it is June 8. Hopefully there are no delays because I anticipate being out of the country -- we haven't set a specific date, but I'm traveling with family at the end of June. So if there is any delay, that could be an issue.

THE COURT: You are talking about leisure travel? MR. FOY: Well, leisure. My family, first-priority travel. That's what it is. So I don't know if it's just leisure. It is not business, but it is the business of having family business.

THE COURT: Well, you should work your family schedule around your professional obligations, counsel.

MR. FOY: Well, if there is a delay in the professional schedule of trial, because it is not unusual for sometimes there to be delays, because if we start a week later

SOUTHERN DISTRICT REPORTERS, P.C.

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for some reason, then it's going to create a conflict. THE COURT: You will not be starting a week later. We are starting on the 8th of June.

MR. FOY: Okay. Here is the issue. The government has represented to you that this is just about a 14-hour period. I suspect that, when the trial comes around, that the only thing that won't come up during the trial is the 14-hour period, right? Because it's not as if we are not here because of other things having nothing to do with the defendants in this case, and the working conditions at MCC are directly related to why things happened in that 14-hour period. The years of conduct, the culture of the institution, the failures in security measures beyond counts.

We have been provided with three videos of the 192 that exist. In the SHU there are nine video cameras. Only one has been produced, and it shows almost nothing. And why that is, the circumstances, what it means, is relevant.

So maybe it will be a one-week trial. That's possible. But what I am trying to avoid is some type of conflict that we can see now that -- you know, because, you know, I understand professional obligations, but if I had to choose between family and my professional obligations, it's --

THE COURT: All right. Well, counsel, I am directing that you be here on June 8 to start trial.

MR. FOY: I will be here.

SOUTHERN DISTRICT REPORTERS, P.C.

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THE COURT: That is my order.

MR. FOY: And I will be here. I just don't want there to be any delay that creates that issue.

MR. FIGGINS: Your Honor -- sorry to cut you off. Your Honor, I'm thankful Mr. Foy said that about the family vacation. I am actually going to be in Italy on a cruise June 1 through June 14. We fly back on the 15th of June.

THE COURT: And you just forgot about it? MR. FIGGINS: Your Honor, I don't keep my social calendar. Luckily he said that and I realized that in June we do have a cruise scheduled, and I didn't even know the date, so I had to find out just now.

THE COURT: When do you return? MR. FIGGINS: The 15th, and I don't even know what day of the week that is, but . . .

THE COURT: We will start on the 22nd of June. MR. FOY: Well, Judge, that's the time I was just talking to you about. Right? That I'm trying to make arrangements to travel with my family. Right?

THE COURT: Well, I understand that it is desirable to have family time, but you also have an obligation to zealously represent your client, and so we are going to start on the 22nd.

MR. FOY: So I don't understand. I mean, I have no

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problem zealously representing my client, and I will do so. If my daughter is going to be in Italy, ironically, and my wife and my other daughter are going to travel there at the end of her program so we can spend time, how is that an issue for us to take that into consideration in a professional setting? Like, I don't understand.

SOUTHERN DISTRICT REPORTERS, P.C.
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THE COURT: Counsel, you will use Skype. Is there anything --

MR. FOY: No, no, no, no, no, no, no, no. THE COURT: Is there anything further? MR. FOY: I'm not going to use -- THE COURT: Counsel, I have heard enough. Is there anything further?

MR. FOY: Well, look, I'm not -- THE COURT: Sit down, counsel. MR. FOY: Can I be heard? THE COURT: You will sit down. MR. FOY: And then be heard from the seat? THE COURT: No. You will sit down. Is there anything further unrelated to the vacation

plans

MR. FOY: This is not just vacation, your Honor. THE COURT: Counsel, I have had it. Now, you sit down and stop --

MR. FOY: Before

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THE COURT: with this nonsense.

MR. FOY: Before I sit down, your Honor

THE COURT: No.

MR. FOY: you said June 8.

THE COURT: Counsel, I have directed

MR. FOY: My co counsel

THE COURT:

you to sit down.

MR. FOY: My co-counsel says

THE COURT: Sit down, counsel.

MR. FOY: he has vacation and

THE COURT: Sit down.

MR. FOY: we are going to interrupt

THE COURT: Sit down.

MR. FOY: my family

THE COURT: Counsel.

MR. FOY: obligations

THE COURT: Counsel.

MR. FOY: for a nonviolent

THE COURT: Sit down, counsel.

MR. FOY: criminal case with no mandatory jail

THE COURT: Counsel, sit down.

MR. FOY: that's not even

THE COURT: Sit down.

MR. FOY: based on their conduct?

THE COURT: Sit down.

SOUTHERN DISTRICT REPORTERS, P.C.
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MR. FOY: It's based on what some other man did? THE COURT: Counsel, you don't have a jury here. Stop performing.

MR. FOY: No. I'm not there is no jury here. I'm trying to address the unfairness

THE COURT: Sit down.

MR. FOY: of proper consideration of a

professional

THE COURT: You are trying my patience, counsel. Sit down.

All right, then. The matter is adjourned.

MS. LONERGAN: Your Honor, sorry. We are going to amend our application to exclude time now until June 22, which is the date the court has now set for trial for the reasons we previously stated on the record.

THE COURT: The matter is adjourned until June 22. The time is excluded under the Speedy Trial Act for the reasons already stated by the prosecution.

oOo

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