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1 UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x

3 UNITED STATES OF AMERICA,

4 v. 18 Cr. 218 (RMB)

5 TYLER TORO,

6 Defendant. Bail Hearing


(Via Teleconference)
7 ------------------------------x

8 New York, N.Y.


April 21, 2020
9 11:17 a.m.

10
Before:
11
HON. RICHARD M. BERMAN,
12
District Judge
13

14 APPEARANCES

15 GEOFFREY S. BERMAN
United States Attorney for the
16 Southern District of New York
BY: ELIZABETH ANNA HANFT
17 Assistant United States Attorney

18 TREYVUS & KONOSKI, PC


Attorneys for Defendant
19 BY: BRYAN M. KONOSKI, ESQ.

20 SABRINA SHROFF, ESQ.


Attorney for Defendant
21

22 ALSO PRESENT: GERALD J. DI CHIARA, ESQ., CJA Duty Attorney

23

24

25

SOUTHERN DISTRICT REPORTERS, P.C.


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1 THE COURT: So this is Judge Berman. I think we've

2 got everybody here.

3 And so I have several issues that I wanted to address,

4 then we'll hear from you as well.

5 First of all, I thank you, Ms. Shroff and Ms. Hanft,

6 for your response to my order dated April 20, 2020. I know I

7 only gave you a short time to respond, so please forgive me

8 about that. But you did manage to touch on some, not all, of

9 the concerns that I want to pursue, and I'll get to that in

10 just a couple of minutes.

11 There is one sort of standout issue that caught my

12 attention, which was included, Ms. Hanft, in your submission as

13 an attachment, and I believe it's a letter that the wardens of

14 MCC and MDC wrote to my colleague Judge Mauskopf in the Eastern

15 District, and it caught my attention because it's a two-page

16 letter from Warden Licon-Vitale and Warden Edge. Warden Edge

17 is MDC Brooklyn, Warden Licon-Vitale is MCC New York. At the

18 very end, that letter says, with regard to the numbers as of

19 April 16, 2020 for MDC, then it says: Inmates tested, 12;

20 inmates positive, 5; staff positive, 16. And then it says,

21 with regard to the numbers as of April 16, 2020 for MCC:

22 Inmates tested, 7; inmates positive, 5; and staff positive, 24.

23 You probably all know this already. That was news to me. And

24 those are, you know, I guess small samples, but sort of caught

25 my eye that MCC, if you do the math, I think that's about a

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1 71 percent positive. Did I read that correctly, Ms. Hanft?

2 MS. HANFT: When your Honor says 71 percent positive

3 rate, your Honor means out of the inmates tested?

4 THE COURT: Inmates tested and inmates positive, yeah.

5 MS. HANFT: So the government has the same sort of

6 limited information your Honor has. My understanding, though,

7 is that those inmates that do not exhibit symptoms would not be

8 tested, so I think it strikes me as incorrect to say that it's

9 a 71 percent positive COVID rate at MCC among --

10 THE COURT: No, no.

11 MS. HANFT: I think that was probably --

12 MS. SHROFF: That's not what he's saying, though.

13 THE COURT: Ms. Hanft, I don't think you're listening

14 to me. I said exactly what's on this letter. I'm not drawing

15 any other conclusions than the obvious one, that if you have

16 inmates tested, 7, and inmates positive, 5, and staff positive,

17 24, that's, to me, you know -- I'm a layman -- that's a pretty

18 astounding number. I'm not drawing any conclusion that it's

19 different or it equals to, you know -- maybe there's a

20 standard, a current standard which compares inmates tested to

21 inmates positive in some other variable way, but I read it the

22 way it's written in the letter. I didn't write the letter.

23 And to me, that sounded like a, you know, pretty high

24 percentage. Now that's also a small sample, I guess, so you

25 need a statistician to say what conclusions one could draw, but

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1 that is the conclusion that I drew from that letter. Maybe you

2 all know this and maybe you all know it in a different context,

3 or maybe you know that it means something that it doesn't say

4 or whatever. That's just my reaction. I had not seen that

5 before. I hadn't seen that letter, for one, and I hadn't seen

6 that result before.

7 But anyway, the reason I'm dwelling on this is because

8 I think that the background of our discussion here has to do

9 with concerns as a result of the COVID epidemic, and we're all

10 interested to know what it means in particular for prison

11 populations, just as we are also interested in knowing what it

12 means for senior citizen homes, nursing homes, assisted living

13 homes. These are populations that we have concerns about.

14 Anyway, that is a concern that I clearly have.

15 So number one, though, on my agenda, with that

16 backdrop, current CJA counsel, Mr. Konoski, has written to me

17 and seeking to be relieved as counsel. He appears to have good

18 cause, but I'll let him explain it himself. And maybe this

19 would be a good time for you to do that on the record. I

20 understand that, among other things, you are no longer on the

21 CJA panel. But did you want to add anything to that,

22 Mr. Konoski, before I rule? I'm inclined to grant your request

23 to be relieved.

24 MR. KONOSKI: Just first and foremost, I'm no longer

25 on the panel and I'm not accepting any new CJA assignments.

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1 And in addition to that, I've been dealing with significant

2 hardships and difficulties in my practice as a result of the

3 COVID-19. All my paralegals and staff had to be temporarily

4 laid off, so me and my partner are trying to manage a caseload,

5 and it's extraordinarily difficult without that staff, and it's

6 not realistically possible for me to add on an additional

7 matter that is going to require attention, significant

8 attention, it appears. And so for those reasons I would ask to

9 be relieved.

10 THE COURT: So I don't suppose anybody wants to be

11 heard. I saw the letter, as you all did earlier, and it's my

12 inclination to grant Mr. Konoski's application. In

13 anticipation, we checked with the CJA calendar, and I'm

14 inclined to appoint new CJA counsel to step in and replace

15 Mr. Konoski.

16 Christine, do you recall who that is?

17 THE DEPUTY CLERK: CJA on duty today is Gerald

18 Di Chiara.

19 THE COURT: Would you spell that for the --

20 THE DEPUTY CLERK: Yes. The first name is Gerald,

21 G-E-R-A-L-D, the last name is Di Chiara, D-I-C-H-I-A-R-A.

22 THE COURT: Do you know if he's available to get into

23 this phone conference, by any chance?

24 THE DEPUTY CLERK: I'm sorry, Judge. I did not make

25 those arrangements.

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1 THE COURT: All right. Well, so that would be my

2 intention, to contact him and to see if he's available to step

3 in as counsel for Mr. Toro.

4 My second point relates to Ms. Shroff. She has been

5 serving as I think self-described pro bono counsel for Mr. Toro

6 and has recently made several filings on his behalf.

7 Ms. Shroff is not unfamiliar with this case. She represented,

8 and maybe still does, Mr. Toro's brother, who was a

9 co-defendant in this case, and it's my understanding she filed

10 the various applications, which we'll get to in a moment, and

11 the thrust of those applications, as I interpret them, is as

12 follows: She is seeking, on Mr. Toro's behalf -- Mr. Toro, by

13 the way, is at the tail end of his 36-month sentence, which I

14 imposed in this case following his plea. He was subject at the

15 time of sentence to a guideline range of 30 to 37 months, and I

16 sentenced him to 36 months, which was at the high end of the

17 guideline range. And since the term of Mr. Toro's sentence is

18 set to expire in September, she's seeking to have, among other

19 things, him placed on home confinement/community supervision

20 with certain conditions attached. In my experience, this is

21 quite a standard practice, especially where a defendant has had

22 a positive record during his incarceration. We used to have a

23 community confinement center in the Bronx where it was not

24 uncommon for some of our defendants who were released to go and

25 spend a year or so. That center, for whatever reason -- and

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1 I'm not exactly sure what that reason is -- was closed down as

2 being I think inadequate, and to my knowledge it has not been

3 reopened. It's very unfortunate. But the community

4 confinement centers are very important in the process of

5 reintegrating people into society after they have served a term

6 of incarceration. As I say, my experience is that defendants

7 go there for up to 12 months, in my experience the minimum is

8 six months, and so it's that kind of thing that Ms. Shroff is

9 advocating for. This has become, more recently, a much more

10 pressing issue and approach, needless to say, with the advent

11 of the COVID epidemic in our federal prison system, and,

12 equally important, the recent explicit directives and

13 guidelines of the United States Attorney General directing

14 prisons to release prisoners, directing wardens to do so, and

15 in favor of home confinement. This has been happening on an

16 expedited basis. The most publicly known is the recent release

17 of Mr. Michael Cohen from Otisville. That release was at the

18 behest of the warden.

19 Personally, I am in favor of these community home

20 confinement situations and believe, as I suspect the Bureau of

21 Prisons does, that it's an appropriate outcome here. But I

22 need to hear more about this and I need more writing.

23 I know that some of you -- Ms. Hanft, you addressed it

24 in a footnote of your letter that I read late yesterday and

25 early this morning, and it's helpful, but it needs to be

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1 brought out of the footnote status and into the light of day so

2 we can understand it. For example, I'm looking for a writing

3 that tells us exactly what is the Attorney General's position

4 with respect to release to home confinement and/or community

5 centers, with citations and supporting material; and also,

6 separately, I would like to know in more detail what is the

7 MCC's position and practice with early release, home

8 confinement, community confinement centers, etc., also with

9 citations. I'm eager to know what the guidelines are, when

10 it's been happening, for what time period, so we can evaluate

11 this case in light of existing precedents and directives. I

12 would like that in writing today, if possible. I was hoping

13 for 4 p.m. And I'll get to that in a minute in more detail.

14 MS. HANFT: Your Honor, I'm sorry. I apologize.

15 THE COURT: That's okay.

16 MS. HANFT: May I pose questions about what you're

17 asking for now or should I wait until the conclusion of what

18 the Court is saying?

19 THE COURT: Let's wait, because I'm going to get into

20 more detail about what I'm looking for.

21 So the next is this issue that Ms. Shroff has also

22 raised, the issue of compassionate release. I'm proposing to

23 put that aside for the moment. That includes, of course, the

24 issues of exhaustion of remedies. The law here is moving quite

25 quickly, and it's hard to keep up, including, I noted that we

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1 have a recent decision by my colleague, Judge Nathan, very

2 recent decision, I think yesterday, and she has an important

3 and interesting analysis of the meaning of exhaustion of

4 remedies.

5 By the way, Ms. Hanft has, in her submission, gone

6 into some important detail about the status of the law of

7 compassionate release, so that is helpful, but it will also be

8 necessary for new counsel to get caught up to speed on

9 whether -- I don't know how this is going to work, if he's

10 going to take over Ms. Shroff's submissions as pro bono counsel

11 or redo or, you know, adopt some of it or not, or maybe has an

12 approach that he himself would prefer to take. But anyway, I

13 think we can put that issue to the side for now. And there's

14 another reason to do that.

15 Seems to me that, as I understand this issue of home

16 confinement toward the end of one's sentence and/or community

17 confinement centers, that's a routine affair. There's nothing

18 extraordinary about that. It usually happens naturally and on

19 its own, and we are alerted -- we as judges -- that defendants

20 who we have sentenced, you know, are now staying at the Bronx

21 Community Confinement Center, for example. They can't be there

22 now because that facility, as I said, has been closed down, but

23 this is just a routine operation, and if it gets us -- and it

24 does, it seems to me -- to the goal, which is the goal of the

25 Attorney General as well, and of the Bureau of Prisons, to take

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1 a defendant out of harm's way of the COVID epidemic, that it's

2 not -- from my point of view, it's not the primary moving force

3 here; the primary moving force here is what we've done for

4 years and years, and I don't understand, and I'd like to

5 understand, whether that's what's going to happen here as well.

6 So then we have to talk to CJA counsel and bring him

7 up to speed, make sure that he knows where we are, that he has

8 a chance -- probably he'll want to call Ms. Shroff and review

9 her submissions and determine what issues he wishes to pursue.

10 So just that.

11 Now as to the written submissions, here's what I'm

12 looking for.

13 MS. SHROFF: Your Honor, I'm sorry to interrupt, but

14 if the Court is sure I'm going to be relieved and the Court is

15 not going to accept Mr. Toro's waiver, I have emailed the CJA

16 office, and I'm just trying to see if I can get the phone

17 number of the new lawyer so that he can be --

18 THE COURT: I don't understand what you're saying. So

19 there is a waiver of Mr. Toro's appearance.

20 MS. SHROFF: Right. No, no. He waived the conflict.

21 THE COURT: Oh, he didn't waive the appearance for

22 today? I thought we were --

23 MS. SHROFF: He did both, your Honor. I sent the

24 Court yesterday -- when I sent you Judge Nathan's opinion, I

25 sent the waiver of both, the conflict and his appearance.

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1 Look, I want to be clear. I'm not seeking to be

2 assigned. I didn't seek out this.

3 THE DEPUTY CLERK: I'm sorry to interrupt. One

4 second, please.

5 Who else is on the call?

6 MR. DI CHIARA: Yes, this is Gerald Di Chiara. I was

7 told to call in.

8 THE COURT: Oh.

9 THE DEPUTY CLERK: Yes. I appreciate that. Sorry.

10 MR. DI CHIARA: No problem.

11 THE COURT: Counsel, we just were getting to you,

12 actually. And what I had said earlier -- and I don't know if

13 you're aware of any of this, but current counsel for Mr. Toro

14 has applied to be relieved. I said that it was my inclination

15 to grant that application. We had a discussion on the record

16 as to, you know, his personal circumstances, including the fact

17 that he's no longer on the CJA panel. So we knew that you were

18 the CJA counsel on duty today, and we would like to have you

19 step in, I believe, as Mr. Toro's new counsel.

20 Now we were just talking, and Ms. Shroff was saying,

21 she has been acting as -- I guess she called it pro bono

22 counsel, and she has made some submissions on Mr. Toro's

23 behalf, including submissions -- he, by the way, is at the tail

24 end of a 36-month sentence, and his sentence is due to end in

25 September. And Ms. Shroff, in her filings, one aspect that she

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1 explored is, well, he's at the end of his sentence. Very

2 often, as you know, defendants are released to home confinement

3 and/or to community confinement centers within typically the

4 last six to twelve months of a sentence. He's got about four

5 or five months remaining. His expiration date of his sentence

6 I think is September 5. And it is not exactly clear to me

7 whether Ms. Shroff wishes to remain as counsel or to step aside

8 for you.

9 One factor that favors perhaps her stepping aside is

10 that she, Ms. Shroff, represented, and perhaps still does,

11 Mr. Toro's brother, who was originally a co-defendant in this

12 case. And Ms. Hanft, on behalf of the government, early on, or

13 a couple of days ago, wrote and said, well, if Ms. Shroff is in

14 the picture, we need to have a Curcio hearing to understand

15 whether Ms. Shroff can continue with respect to Mr. Toro since

16 she has this historical representation, at least, of Mr. Toro's

17 brother.

18 Ms. Shroff, are you still representing the other

19 brother?

20 MS. SHROFF: No, your Honor. He does not have a

21 pending case. He has withdrawn his appeal, as the government

22 well knows, and he has been sentenced by this Court with no

23 criminal or habeas petition pending.

24 I just want to be really clear here, your Honor. I am

25 happy to step aside. I'm happy to continue. I have not -- I

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1 did not seek to come into play here. The client's mother

2 called me, and internally, we discussed whether or not a motion

3 for a compassionate release would in any way implicate any

4 underlying facts, which clearly they do not. We're not looking

5 to relitigate facts. But if it's going to make it -- whatever

6 makes it go faster for Mr. Tyler Toro is my only interest here.

7 Because here's the thing. He would otherwise have been

8 released from MCC on May 5th, right? The whole reason to

9 keep these people in jail towards the tail end of their

10 sentence is so they get programs, so that they get ready for

11 transition, then they are transitioned into the halfway house,

12 and they go on with life. Mr. Tyler Toro has been in lockdown

13 now for months. Not only was he in lockdown, they shipped him

14 to Allenwood, and then they shipped him back to MCC. This man,

15 of all of the men in the MCC, is at increased risk because they

16 keep moving people whenever there's a COVID positive, and then

17 they bring them back.

18 So whatever the Court thinks will go faster for Tyler

19 Toro is all I'm interested in here. I want to be clear. I'm

20 not asking for CJA appointment. I'm not asking for funds to

21 compensate me for my work. I did this only because, as a

22 public defender of many years, I wanted to do the right thing.

23 Whatever the Court thinks is going to make this go fast, I'm

24 happy to do. I'm also happy to work with the CJA lawyer here.

25 I don't care. I genuinely believe this man should come out.

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1 The Court has drawn a distinction between the brothers. You

2 gave this man half the time that you gave the other brother.

3 Judge Nathan's opinion is clear, Judge Ross's opinion is clear.

4 The Attorney General's position, the government well knows, is

5 to release into home confinement. I mean, I'm not even talking

6 about Otisville. Out of the entire camp, Michael Cohen, who

7 owes two years to the United States, is out.

8 I mean, time is really of the essence here. I cannot

9 stress this. So whatever can make this go fast, I am happy to

10 do.

11 THE COURT: So I think --

12 MS. SHROFF: And I did send you the waiver. I did

13 send the Court a waiver. I explained the conflict, and I told

14 Mr. Toro's mother to copy the case into Mr. Toro's account,

15 which she did, and then Mr. Toro sent her back a reply, and

16 then the reply again said that MCC is going back into lockdown.

17 THE COURT: I see. So I think we'll hold on the issue

18 of replacement, but we're going to ask CJA counsel if he can

19 join this representation, and perhaps when he gets up to speed,

20 which hopefully will be quickly, he can advise the Court as to

21 what he thinks is the best next step. And he can talk, of

22 course, to the government, he can talk to Ms. Shroff, and

23 should do all those things.

24 So I agree conceptually that this is a matter which

25 should be expedited if, as I think is the case, Mr. Toro would

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1 normally be entitled -- put that word in quotes -- to release

2 to home confinement, and that is what I understand Ms. Shroff

3 is advocating for.

4 And counsel, defense counsel, I was just saying that

5 there is some additional material that I want to be informed

6 about, and I was in the process, when you came on the phone, of

7 asking the government if they could make a further written

8 submission today, let's say by 4 p.m. in the afternoon. This

9 is not really very heavy lifting. There are two areas that I

10 would like to know more about. One is the Attorney General,

11 the U.S. Attorney General's directive, the recent directive

12 concerning release of prisoners who are, in my understanding,

13 toward the end of their sentence. I gather that that may not

14 be the case. Some people may be being released even though

15 they're not at the end of their sentence, but Mr. Toro

16 certainly is. I'd like to know the status of his directives

17 with respect to release from BOP facilities.

18 And second, I would like to know, with authorities and

19 citations, what the MCC/Bureau of Prisons' practice of release

20 to community confinement centers/home confinement is, again,

21 with statistics or cites or guidelines, etc. It seems to me,

22 from everything that I know, this is really a simple matter

23 here, and if people act the way they historically have -- that

24 is to say, Bureau of Prisons, U.S. Attorney's Office, defense

25 counsel -- this is very routine business.

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1 And as I also understand, Mr. Toro has a good record

2 while he's in the BOP -- that is to say, no infractions that

3 I'm aware of. In the normal course, this is what would happen:

4 He would be released to either a community confinement center

5 or, in light of the Attorney General's recent directive, home

6 confinement. So if that is what is going to happen, it doesn't

7 sound like a big deal and it should happen.

8 But that's what I'd like to see.

9 And then I would like to see from defense counsel any

10 response to today's submission from the government, hopefully

11 tomorrow at 4:00. If you need a little more time, since you're

12 new to the case, I think that can be worked out.

13 MR. DI CHIARA: Judge, it sounds like Sabrina is fully

14 versed in everything that has to do with this case, and I would

15 like, if I'm going to be involved in it, that she work with me,

16 because it's the only way I'd be able to get up to speed by

17 4:00 tomorrow.

18 THE COURT: Yeah, well, everybody knows, and Sabrina

19 knows, that she is affable and works well with others, so I'm

20 sure, especially if you're on the same side that she's on, that

21 she'll be very helpful to you as well.

22 MS. SHROFF: Now, Judge, I don't know if I should take

23 that in the way you intended it or not.

24 MR. DI CHIARA: Frankly, I think she's going to be

25 doing most of the heavy lifting here, but I'm more than happy

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1 to help in any way I can.

2 THE COURT: We'll see. We'll see.

3 So we have to -- let's see -- take a look at the

4 submissions. We have to hear from the government on the issue

5 of Curcio, if that's still an issue, or not.

6 So Ms. Hanft, that's what I'm looking for. And I

7 don't know if you have questions about any of that.

8 MS. HANFT: I do, your Honor. Thank you for the

9 opportunity.

10 The first point your Honor raised, it appears to me,

11 is what is the Attorney General's directive, and I can

12 certainly point the Court to the Attorney General's directives.

13 I'm sure we're all in agreement that this pandemic is a serious

14 issue and we should all act expeditiously, and that's what the

15 government has endeavored to do from the beginning in this

16 case, and in all cases. The Attorney General's directive

17 regarding home confinement was directed to the Bureau of

18 Prisons, so I'm happy to, again, point the Court to that

19 directive, but, you know, the Bureau of Prisons should in turn,

20 particularly in light of the pandemic, consider home

21 confinement. This directive does not give the government, the

22 U.S. Attorney's Office, or the Court any particular role. As

23 the Court knows, the Bureau of Prisons has sort of plenary

24 authority over certain Bureau of Prisons-related matters, such

25 as programs, re-entry centers and the like. And so again, the

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1 government will point the Court to that directive. That

2 directive is to the Bureau of Prisons and doesn't give the

3 government, the U.S. Attorney's Office, any role to play there.

4 In contrast, of course, Section 3582, as modified by

5 the First Step Act, does give the Court a role to play, and

6 that is why the government responded to the compassionate

7 release portion of Ms. Shroff's motion, because the portion of

8 the motion that is brought under Section 3624(c) of Title 18,

9 there's really no role for the U.S. Attorney's Office or the

10 Court to play. Your Honor has spoken of this being sort of a

11 routine consideration towards the end of a defendant's

12 sentence. I don't dispute it, but it's not at all routine for

13 the government, the U.S. Attorney's Office, or the Court to

14 play any role in that Bureau of Prisons decision, and so, you

15 know, I can cite the Court to, for example, Tapia v. United

16 States, which talks about the Bureau of Prisons' plenary

17 control over prisoners' place of imprisonment. And that's

18 564 U.S. 319.

19 For precisely the reasons your Honor has said, the

20 Bureau of Prisons has the information to determine whether, for

21 example, a defendant's conduct has been good, whether certain

22 centers are appropriate for release, whether home confinement

23 is appropriate. In particular, under these circumstances,

24 where the Bureau of Prisons is flooded with these requests and

25 is able to prioritize them and compare them and collect the

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1 relevant data, that's why it's entrusted to the Bureau of

2 Prisons to make these decisions.

3 So my understanding is that just a few days ago,

4 Ms. Shroff made a request for release to home confinement for

5 Mr. Toro under Section 3624(c). I'm happy to inquire about the

6 status of that request. It's only been a few days, and I

7 imagine that the Bureau of Prisons is still working through

8 that request.

9 Similarly, your Honor asked us to get in touch with

10 the MCC, and I will endeavor to do that. I don't imagine --

11 it's unlikely that by 4 p.m. today the MCC will have responded

12 to the government with statistics about, you know, the number

13 of people that have been released to home confinement by the

14 MCC, in general, you know, and even what Mr. Toro's current

15 status is. You know, there's a set of procedures that are laid

16 out for defendants to go through here, and it's just been a few

17 days since Ms. Shroff filed her letter, and so I don't,

18 frankly, know what role there is for the government or the

19 Court to play as to that portion of the motion.

20 THE COURT: So you worry about your role, I'll worry

21 about mine.

22 MS. HANFT: Understood, your Honor.

23 So is your Honor simply asking the government to point

24 the Court to the Attorney General's directive to the Bureau of

25 Prisons and to attempt to glean the MCC statistics on release

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1 to home confinement during the period of the COVID pandemic and

2 put that information in their letter?

3 THE COURT: Well, so first, you know, I think you're

4 being too modest. In my experience, which is fairly lengthy,

5 when there is an issue like this, they often come to my

6 attention, in cases that I've been involved in, supervised or

7 sentenced, etc., and there's lots that can be done, just as

8 I've convened this conference here today, to get some

9 intelligence and understanding, and this may be a matter of

10 personal style or preference, very often I've been very

11 involved, very recently, very intensively, working in tandem

12 with your colleagues. So you may have a different approach

13 personally, but I don't think you should speak for the U.S.

14 Attorney's Office because that is not the way many of your

15 colleagues participate in this kind of problem solving.

16 So the U.S. Attorney's Office, Southern District, is

17 part of the Department of Justice. The Bureau of Prisons is

18 part of the Department of Justice. It's not as if nobody talks

19 to anybody. And typically the conversations that happen are

20 intended to be constructive and particularly where, in a

21 situation as this one, nobody is looking for any -- let's use

22 the word "benefit" -- for Mr. Toro. Frankly, I'm concerned

23 that he is treated more adversely than what would normally be

24 the case.

25 As I say, I've had hundreds, maybe even thousands -- I

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1 don't know -- criminal cases, and these are routine affairs,

2 the release to community confinement centers and home

3 confinement. And now -- when I say now, meaning the last

4 several weeks -- we actually have guidance, directives from the

5 United States Attorney General advising that this is what

6 should happen. So I just want to make sure that -- I'm not

7 trying to reduce Mr. Toro's sentence. I'm just trying to make

8 sure that he receives what he's entitled to. And both issues

9 were placed before me by Ms. Shroff, who is an ardent advocate

10 and who I've known for quite some time, and so I take her

11 request seriously, as I do yours, and then I try to come to

12 whether there's a reasonable resolution, and so far, nobody has

13 told me that I've acted outside of the scope of my position.

14 So that's what I intend to do here as well. I'm

15 looking for intelligence; I'm looking for information. This is

16 publicly available. Everybody knows what I'm talking about.

17 Everybody has heard and read about the Attorney General. You,

18 as part of the Department of Justice, I think have easier

19 access to this information than I might have, and that's what

20 I'm asking you to supply.

21 So just so it's clear, first are the Attorney

22 General's directives, the recent directives regarding release

23 of prisoners who are, in this case, at the tail end of their

24 sentence from BOP -- and I'll throw this in, as I said

25 before -- who, it appears, from what I know, to have had no

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1 disciplinary issues while incarcerated. He got a 36-month

2 sentence out of a guideline range of 30 to 37 months, and he's

3 just four months or so short of completing that sentence. And

4 typically persons such as Mr. Toro would be entitled to be

5 released to a community confinement center or home confinement,

6 and that would, as a by-product, but an important one, help

7 take him out of harm's way during this unusual COVID pandemic.

8 That's one.

9 And two is what the MCC or the Bureau of Prisons

10 and/or Bureau of Prisons' practice is with respect to -- and

11 there are statutes here with respect to release to community

12 confinement, community centers and home confinement, and that

13 should not be very difficult for you to put together either, I

14 don't think. So that's --

15 MS. HANFT: No, your Honor. And I can cite the

16 relevant statute right now. But I'm happy to put that letter

17 together for the Court. I understood the Court to be asking

18 for statistics on who had been released during the pandemic,

19 and I don't know that that's been put together.

20 THE COURT: You're a smart lawyer and you know how to

21 do research and how to write. Your letter to me was

22 exhaustive -- I didn't say exhausting, I said exhaustive, meant

23 in a good way -- with respect to compassionate release,

24 thorough, all the cases. Didn't have Judge Nathan's case,

25 because I guess that hadn't come out yet. But you know what a

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1 persuasive document is to submit to the Court, and that's what

2 I'm looking for. I've got plenty of information now from you

3 with respect to compassionate release, but I'm now in the

4 world, in the real world of what's doable, what's appropriate,

5 what's likely to happen, and what in fact -- maybe if we all

6 got out of the way -- would happen. That's all I'm looking

7 for.

8 So let's see. I'm going to ask CJA counsel to get

9 together with Ms. Shroff and see what she submitted, where

10 things stand. You know, if in fact this is all going to happen

11 organically, then we'll all take credit for it and it will be

12 the right resolution and it will go quickly. That's all I'm

13 trying to make sure that happens, if that's what's supposed to

14 happen.

15 Anybody else?

16 MR. DI CHIARA: Excuse me. Sabrina, could you take my

17 phone number because I'm not at the office. 516 --

18 MS. SHROFF: I have your phone number, but just to be

19 sure. 516?

20 MR. DI CHIARA: -- 361-4589.

21 MS. SHROFF: Okay. Your Honor, just two things.

22 Just a quick search on the internet gives me the

23 Attorney General Barr's April 3rd memo, which is increasing

24 use of home confinement at institutions most affected by

25 COVID-19. A Google search will give it to us. I'm happy to

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1 email it.

2 But I just wanted the Court's permission to send you a

3 letter from Tyler Toro detailing all of the courses he has

4 taken at the MCC, including that he has his HVAC license in

5 there, that he works in the kitchen, and that he had served as

6 a counselor, he started the GED programs. To the extent that

7 would impact the Court, I'm happy to send it. If it's not

8 important, I'll skip it.

9 MR. KONOSKI: If I can just intervene for a moment, I

10 just want to confirm, am I officially relieved as counsel,

11 since CJA counsel is present?

12 THE COURT: Well, you can't leave fast enough, it

13 sounds like. Yes, the answer is -- that was a joke,

14 Mr. Konoski.

15 MR. KONOSKI: It's okay.

16 THE COURT: Probably a bad one. But the answer is

17 yes, you are officially relieved. Yes.

18 MR. KONOSKI: Thank you very much. Everybody have a

19 nice day and everybody please be safe out there. Thank you.

20 THE COURT: Thanks, Mr. Konoski.

21 MR. KONOSKI: Thank you.

22 THE COURT: So Ms. Shroff, I have one question and one

23 answer to your question. Was I correct when I said before that

24 Mr. Toro had no disciplinary infractions during the course of

25 his incarceration?

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1 MS. SHROFF: That is correct, your Honor.

2 THE COURT: Okay.

3 MS. SHROFF: And he was told by the BOP that his

4 release date would have been May 5th. They said his

5 conditional release date, had none of this happened, would have

6 been May 5th.

7 THE COURT: Got it.

8 MS. HANFT: Your Honor, can I just ask, Ms. Shroff has

9 cited that date a number of times and I have no reason to doubt

10 it, but is there some document that we could receive that shows

11 that his release date was going to be May 5th?

12 MS. SHROFF: I don't have a document, but that's what

13 his family has been preparing for, but I think if you just ask

14 MCC, what's the projected date for him to go into the halfway

15 house, it would make sense that that would be the date because

16 of the way -- his release date is September 5th, so it would

17 be May, June, July, August, September. It's the right amount

18 of time right beforehand, but I don't have an official

19 document. But there is no doubt he's supposed to be released

20 on September 5, 2020. That's the --

21 THE COURT: Wait a minute. Ms. Hanft, that's the end

22 of his sentence I think is the September date.

23 MS. SHROFF: Right.

24 MS. HANFT: That is the projected release date based

25 on the good time credit, yes.

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1 MS. SHROFF: Right. That's his release date, not to

2 be going to a halfway house.

3 MS. HANFT: Understood. And I agree with that, and

4 I've seen documentation to that effect. The May 5th, it

5 sounds as though Ms. Shroff is representing that there was a

6 decision in fact by the BOP to place him in a halfway house,

7 and I have not seen that. I have reached out to the MCC. And

8 what was in part motivating my response to the Court, which is

9 that I certainly would like to be apprised of the status of the

10 request, whether in fact it was the BOP's intention to release

11 him to a halfway house, whether it is their intention to act on

12 this letter, but I don't have that information, and so I was

13 simply inquiring whether defense counsel had that. It sounds

14 like none of us have it, and I will certainly make efforts this

15 afternoon to get that information.

16 THE COURT: That would be very helpful, because I

17 don't have it, and I'm just certain about the September date,

18 and I don't know the May date, where that comes from, other

19 than it struck me as being compatible with past practices, but

20 I don't know that for a fact. So that would be helpful.

21 MS. SHROFF: I will check with his mother also,

22 because she is the one who has been in touch with him and told

23 me that. But I think that the government can very easily check

24 that he has all of these licenses, he has been working at MCC,

25 he has zero disciplinary issues, and I think they most

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1 certainly can check how many times the MCC has bounced him

2 around.

3 THE COURT: Well, okay. So I would like you to put

4 that in the package in response to what the government submits

5 today, so when you respond tomorrow, you can include that

6 information in your written submission.

7 MS. SHROFF: Okay.

8 THE COURT: Okay?

9 MS. SHROFF: Okay.

10 THE COURT: All right. So anything else that we

11 should cover? Anybody have any questions or any other topics?

12 MS. SHROFF: In light of some of these cases, your

13 Honor, the government may -- I just ask, please, that they

14 reconsider their opposition, especially in light of the fact

15 that all these prisons are emptying out, other people who owe

16 more time are emptying out, and the purpose of keeping him in

17 for the last six months cannot be met by MCC. The purpose is

18 to segue him, and MCC won't do anything now, they can't, so if

19 putting him on probation earlier would accomplish those goals,

20 why would the government oppose? I'm just making the

21 suggestion for thought, Ms. Hanft. I mean, Mr. Toro is not

22 going to be punished fairly if he's left in for six months,

23 right? But that's all I'm saying. If there's any room for

24 rethinking the government's position, I ask you to take that

25 into account. That's all.

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1 THE COURT: All right. So nothing I'm suggesting

2 would prevent the two of you from meeting and conferring and

3 with CJA counsel, once you've gathered, you know, the relevant

4 data.

5 Ms. Hanft, did you want to add anything?

6 MS. HANFT: Yes, your Honor. I guess the government's

7 position again is that as to 18 U.S.C. Section 3624, which has

8 to do with home confinement, our position is not really called

9 for. It's within the discretion of the BOP. I am not

10 resisting. I understand your Honor's directive to inquire

11 about their procedures, which I will do.

12 As to the compassionate release motion, we've set

13 forth our position on the merits, and that is a position that

14 has been vetted by the highest levels of our office, so we're

15 not going to reconsider that position as to the merits of the

16 compassionate release motion, which, my understanding is, your

17 Honor is not currently taking under advisement because your

18 Honor wants to first understand whether, pursuant to Title 18

19 United States Code Section 3624(c), the BOP is on its own

20 considering releasing Mr. Toro to home confinement in light of

21 the Attorney General's directive and its normal procedures.

22 THE COURT: So for whatever it's worth, let me just

23 say -- and we need a date in the next week, but in the last I

24 would say week, maybe 10 days, I've been involved personally

25 with the U.S. Attorney's Office, with defense counsel -- I'm

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1 trying to think of others who were involved -- in three cases

2 that specifically come to mind -- and they're all different

3 scenarios, but in each instance there was -- oh, and of course

4 the BOP, yeah. In each instance there was contact back and

5 forth among counsel, among themselves, with the Court, with the

6 BOP. Somebody was supposed to be on a plane. Where is he? Is

7 he on the plane? He ultimately was on the plane. So in the

8 real world, especially one that's moving as quickly as this

9 one -- and by this one, I'm talking about the COVID pandemic --

10 and with such enormous consequences to personal well-being,

11 health, and safety of not just a particular defendant but also

12 of other persons incarcerated, there's been a much more organic

13 interplay, including the persons who play your role, the role

14 you're playing in this case, they play in those cases, and in

15 each instance -- I'm thinking of three people. Two got

16 released ultimately to their homes in the Bronx, or that's

17 where they're staying. One person was scheduled to go to

18 Butner because he had been determined to be incompetent and he

19 was in need of the services that might restore his competence

20 so that he could ultimately be sentenced in the case. So these

21 are real life, real situations, and I was intimately involved,

22 and so were the defense counsel and so were the government

23 counsel, and so were the representatives of the BOP, integrally

24 involved, and I have to say, in my personal experience,

25 personal view, that was some of the, I think, most important

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1 work I've ever done here as an S.D.N.Y. judge. So I know

2 everybody's different. Everybody has a different perspective.

3 Judges do things differently, lawyers do things differently.

4 But there's nothing here that's being proposed that isn't

5 appropriate and that doesn't happen every day of the week. So

6 that's all I'm trying to accomplish here now.

7 MS. HANFT: Understood, your Honor, and I and my

8 colleagues are all in touch throughout the day, every day, on

9 these fast-moving issues, and I certainly intend to continue to

10 do so.

11 THE COURT: Great. I appreciate that.

12 So Christine, we need a conference next week, early

13 next week, to find out where we are.

14 THE DEPUTY CLERK: How about Monday, April 27th, at

15 10:30?

16 THE COURT: If you have something on Tuesday, I think

17 that might be easier.

18 And by the way, Ms. Hanft, if you find out that

19 information, that would be very helpful if you'll include that

20 in your submission as to if there is an early date.

21 Historically -- and I don't remember where this information is

22 found, but there used to be a BOP indication of when community

23 confinement center might come into play. I don't know if it

24 was a --

25 MS. HANFT: That's found at 18 U.S.C. 3624(c), which

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1 authorizes the BOP -- and this is in the government's letter --

2 which authorizes the BOP to consider home confinement for

3 the -- I believe it's 10 percent of the sentence or six months,

4 and we cite to that in our letter and --

5 THE COURT: No, I know you do, but there actually was,

6 and is -- I don't know if there still is, but there is an

7 indication with respect to every one of my defendants who comes

8 to the end of their term, there is some sort of designation,

9 log, chart -- I don't know who puts it together -- which

10 indicates not only when the person's sentence is scheduled to

11 conclude but also when community confinement center is intended

12 or likely to kick in. So --

13 MS. HANFT: Okay. Understood, your Honor. I have

14 reached out on that, and I will continue to do so.

15 THE COURT: All right. I'm sorry, Christine. Do we

16 have something Tuesday?

17 THE DEPUTY CLERK: Tuesday, it would have to be at

18 2 p.m.

19 THE COURT: I could do that.

20 Can you all do Tuesday, at 2 p.m., another

21 teleconference like this one?

22 MS. SHROFF: Sure.

23 MS. HANFT: Yes, your Honor.

24 MR. DI CHIARA: That's fine.

25 THE COURT: Okay. All right. Sounds like everybody

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1 is in. Thanks very much for your cooperation. And we'll talk

2 to you on Tuesday. Thanks so much.

3 ALL COUNSEL: Thank you.

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