017.pdf

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
v. 19 Cr. 830 (AT)
TOVA NOEL and MICHAEL THOMAS,
Defendants.
Conference
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New York, N.Y.
November 25, 2019
12:00 p.m.
Before:
HON. ANALISA TORRES,
District Judge
APPEARANCES
GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
BY: REBEKAH A. DONALESKI
NICOLAS T. ROOS
Assistant United States Attorneys
FOY & SEPLOWITZ LLC
Attorneys for Defendant Noel
BY: JASON E. FOY
MONTEL FIGGINS
Attorney for Defendant Thomas

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

THE COURT: Good afternoon.
We're here in the matter of United States v. Tova Noel
and Michael Thomas.
Would you make your appearances, please.
MS. DONALESKI: Good afternoon, your Honor. Rebekah
Donaleski and Nicolas Roos for the government.
MR. FOY: My name is Jason Foy, attorney for Ms. Noel.
Good afternoon, your Honor.
THE DEFENDANT: Good afternoon, your Honor.
MR. FIGGINS: Good afternoon, your Honor. Montel
Figgins on behalf of Michael Thomas, who is presently in court,
standing to my left.
THE COURT: Please be seated.
Has the prosecutor finished delivering discovery to
the defendants?
MS. DONALESKI: No, your Honor.
The defendants self-surrendered last Tuesday, on
November 19. They were presented and arraigned that day. We
notified defense counsel we would begin producing discovery
once a protective order is in place, and we will do so on a
rolling basis.
THE COURT: When do you expect to be finished?
MS. DONALESKI: We anticipate that we'll need a month
to complete production of the discovery currently in our
possession.

THE COURT: When do you expect the protective order to
be in place?
MS. DONALESKI: Your Honor, we'll provide a draft to
defense counsel within the next day, and then depending on how
long it takes for them to comment on it and the parties to
reach a resolution, we'll provide it to the Court as
expeditiously as possible, so it's my hope that that can happen
within a week.
THE COURT: All right. By the end of December,
discovery should have been produced. Is that correct?
MS. DONALESKI: That's fine, your Honor.
THE COURT: It's not voluminous, is it?
MS. DONALESKI: Your Honor, it will consist of
hundreds of hours of video recording, so in that aspect it will
be voluminous, but the paper records, the bank records will not
be voluminous.
THE COURT: All right. It doesn't seem that you would
need more than a month to review the discovery so that by the
end of January, you should have made decisions as to whether
you're going to be filing motions. Correct?
MR. FIGGINS: Your Honor, if I may?
I also know that there's an ongoing inspector
general's report. I don't have any idea as to the time frame,
if and when that's going to be completed. I do believe that
there would be some pertinent information, relevant information
in that report, so if we could get some -- if they have any
idea as to when that's going to conclude, I do believe that
that may have some impact in terms of information that we
desire to have as well as I do believe that we're also going to
be subpoenaing some documents as well. But I don't think we
would need more than the end of January, presumably, to have an
idea to convey to the Court where we are with respect to moving
forward with motions.
MS. DONALESKI: Your Honor, we'll provide the
discovery in our possession to the defendants by the end of
December. I don't know of a basis to hold up a criminal case
based on a DOJ inspector general report, and I don't have a
time line of when that will be completed.
MR. FOY: Your Honor, I agree that by the end of
January we should be in a position to assess what motions, if
any, will be necessary. We'll also be in a position to
determine whether there are any issues regard to discovery or
additional information at that point.
MR. FIGGINS: And your Honor --
THE COURT: One moment, please.
You'll return to court on January 30 at 11 a.m. --
that will be a control date -- and you'll let me know whether
you expect to file motions.
Now, with respect to a trial date, April 20.
MR. FIGGINS: That's fine for us.

MS. DONALESKI: That's fine for the government, your
Honor.
THE COURT: How long do you expect the trial to last?
MR. FOY: Your Honor, I would say it's fine. I mean,
as it looks right now, but based on some of the things I'm
anticipating, I don't know if that would be enough time and
maybe we want to wait and see, because I need to see the
discovery before I can say definitively that, yes, April 20 is
an appropriate date. But for now certainly that would be fair.
THE COURT: We're told that the discovery consists of
video and documents. I don't understand why you can't
anticipate whether you can go forward on the 20th.
MR. FOY: Because I haven't seen what those documents
are and what impact it might have on the defense of the case as
well as my thoughts on some additional documents that may go
beyond what they believe Rule 16 requires. I can imagine a
situation where we feel that there's more to be provided than
what the government provides. We're not there yet, so I'm not
suggesting that it's definitely going to be an issue, but I did
want to alert the Court early on of the possibility. But once
I get the discovery, I'll be in a position to say more
affirmatively.
THE COURT: What else are you expecting?
MR. FOY: You mean as far as discovery?
THE COURT: You're talking in vague terms about
something else coming up, and I'd like to know what that is.
MR. FOY: Well, your Honor, based on our view of the
case, I believe there are outside circumstances that are
driving this prosecution that may impact certain information
that's available to us in the regular discovery.
It's hard for me to say without seeing anything, so
right now it's just kind of in my mind, and I don't want to
mislead the Court to suggest it's all going to be finished in
time for April 20. It may be, and that may be fine, but it's
hard for me to say having not received or reviewed the
discovery. I've only seen the indictment.
I'm just alerting the Court. I'm not saying we can't
do it, but I don't want to not say it when it's something that
could potentially be an issue. I'm not saying we're trying to
hold it up or slow down the pace unnecessarily, but I can see
getting information that may impact on the defense in
particular, Brady material in particular.
THE COURT: Brady material?
MR. FOY: Correct, but it's hard to say specifically
without seeing the discovery.
THE COURT: All right. You have not persuaded me.
I'm setting the trial for April 20.
How long do you expect the trial to go?
MS. DONALESKI: Approximately a week, your Honor, for
the government's case.

MR. FIGGINS: Your Honor, I would think it would
probably be about five days on our case.
And your Honor, I did want to ask the Court or we
would like to at least get some type of idea with respect to
the status of the inspector general's report. I do think that
it's beyond relevant; it's an investigation into what happened
here. There's going to be multiple details of information and
interviews and statements and things of that nature regarding
this particular case, so on and so forth. So I would ask at
least the Court to see if we can get a time frame from the
government if that report is going to be imminently due or what
type of time frame we're looking at, because I do believe there
are going to be a lot of relevant facts in that report, that we
would need that information. And then we would need time to
then maybe even investigate based on some of that information.
THE COURT: Does the government know anything about
that?
MS. DONALESKI: Your Honor, I don't. And I'll just
clarify that to the extent counsel's asking for a summary of
the results of the criminal investigation, obviously we'll be
turning over in discovery all of the underlying results of the
criminal investigation. So I'm a little puzzled as to what
defense counsel is saying that he needs. I don't have a time
frame on the inspector general report, but the government will
produce to the defense all of the relevant discovery materials
in this matter, which includes the Rule 16 materials relevant
to the criminal charges that have been brought against the
defendants.
MR. FIGGINS: Your Honor, to be more specific, one of
the issues here is going to be the conditions and the
supervision and the policies that were upheld and advanced by
the Bureau of Prisons. That is what the inspector general's
report is investigating. That's very important information
that's relevant to this case and relevant to the defense. I'm
not saying we have to hold up our case forever, but we should
at least get some type of idea as to the status of that report
and when it's going to come out or when they're going to
complete the actual report because I believe that there's going
to be a lot of information that may be relevant to our defense,
and it may not be specifically just about this particular
investigation.
There's been multiple information in the media now
with respect to testimony by the head of the Bureau of Prisons,
information released by the U.S. Attorney himself regarding
this investigation with respect to this case, so I believe that
we will need that information. If we're hearing that those
people are making statements about that report with respect to
this case, clearly there's going to be information and
potentially statements and other information that we may need.
So I think it's important that we at least try to get an idea
of when that report may be completed.
THE COURT: I'm putting the matter on for trial on the
20th of April. It's a firm date, and I am giving you two weeks
for trial.
Are there any further applications?
MS. DONALESKI: The government moves to exclude time
between today's date and April 20, 2020, in order to allow the
defendants to review discovery and prepare for trial.
MR. FOY: Yes, I do have another application, your
Honor.
As I alerted the Court prior to today's court
proceedings, I wanted to revisit the issue of the release
conditions for Ms. Noel at this time.
On November 19, we appeared before the magistrate
court. The government and Ms. Noel had an agreement with
regards to the bail package. After our interview with pretrial
services, they added additional conditions that were not a part
of the original agreement. Of the additional conditions, one
of them was travel restrictions.
One of the permissible areas at the time that was
stated on the record was the Eastern District of Pennsylvania.
Turns out that it should be the Middle District of Pennsylvania
instead of the eastern, so I'd like that to be corrected. But
the second issue, which is really the main subject of this
application, is with regards to the surrender of her firearms,
which Ms. Noel has already complied with.
During the proceedings before the magistrate court, I
presented arguments in favor of her ability to keep her
firearm. I'm asking for this Court to reconsider that decision
and provide an individualized assessment of whether that
condition is appropriate under the circumstances of this case.
Your Honor, this case involves allegations of
nonviolent criminal conduct. I do not believe that there's a
controversy of whether she's a flight risk or danger to the
community. What has been said to me with regards to why the
application for the firearm has been made by pretrial services
is to make them more comfortable so when they come to the home
there's not a firearm in the home.
I do appreciate the fact that pretrial services needs
to be safe, and I don't deny that. However, when it comes to
infringing upon her Second Amendment right to possess her
firearm that she has legally, that's personal to her, I also
would like to make one correction in the record from my
previous presentation, because I indicated to the Court at that
time that she possessed it legally and that she just has it for
the home.
Well, it turns out she does have credentials to
actually carry her firearm in public as it relates to her job.
I suspect that that could change if something happened with her
job as a result of these proceedings, but that wouldn't change
her ability to actually possess her firearm should her job
status change, meaning there may become a change in her ability
to carry it publicly because of a change of job situation, but
it won't impact her constitutional right to actually bear arms.
Under 3142, the Court should consider the least
restrictive methods, in this case, I think, address the safety
issue being raised by pretrial services.
If you look at Ms. Noel's history and character, she
doesn't have a prior criminal record. She has no history of
violence or bad conduct that might indicate that she is a
physical threat, that she would use her firearm against another
unwarrantedly.
The pretrial services report was done by the person
who's going to supervise her. I've had an opportunity to speak
to pretrial services about this application, that I would be
making this application, and fortunately, having worked with
the pretrial services officer, he respectfully disagreed with
my position and mentioned to me that one of the concerns is
what happens if I come to the home and the gun is out? That's
a problem.
Well, it could be a problem, I suppose, but it's not
like a dog who has its own will and may go bite someone. In
fact, I submit to the Court that if my client had a dog that
wasn't friendly to strangers, that one of the remedies we would
say is when they come from pretrial services, you have to put
the dog away. What I'm suggesting to your Honor in the least
restrictive manner is that we can make sure that if anyone from
pretrial services comes to the home, that she will secure the
gun away so that it's not out, since that seems to be their
concern.
She doesn't have any ill will towards the court staff
or anyone a part of this process. She understands what she
needs to do. There is no actual, credible, competent threat
supported by evidence to suggest that at this time her
constitutional right to possess her weapon should be infringed
at this time.
I suppose there could come a time where that could
change, but when we take it now, without an individual
assessment of her particulars, her background, the specific
circumstances of the case, then it gives the impression as if
the conclusion's foregone that she should be -- meaning in this
case -- a felon deprived of her firearm. She's not. She
remains innocent as we sit here today, and the fact that she's
here is disappointing, but we're here, so we have to deal with
it.
All I'm asking for is fair consideration in an
individualized way. Any concern that your Honor has about her
possessing a firearm, I'd welcome you to address it with me so
I have an opportunity to directly speak to your concerns.
THE COURT: I'll hear from the government.

MS. DONALESKI: Your Honor, with respect to modifying
the travel restrictions, we have no objection to including her
travel restriction to the Middle District of Pennsylvania.
With respect to the firearm, defense counsel raised
this in front of Judge Netburn last week, who had the
opportunity to consult with pretrial services. She denied this
request, as your Honor should do.
We respectfully submit it is due to the safety
concerns of pretrial services that the defendant should not be
permitted to possess her firearm. The pretrial services
officers have to go into the defendant's home, including at
unscheduled visits, and due to their safety concerns with
having a defendant who has access to a firearm and they may not
know where the firearm is in the home, it's entirely reasonable
for pretrial services to say as a policy defendants have to
surrender their firearms.
This is done in every case, your Honor, including law
enforcement officers who are on pretrial services supervision.
Defendants are required to give their firearms back or to
surrender their firearms simply for the safety of the pretrial
services officers who are going into their homes. And given
that safety concern, we believe that it is appropriate, as
Judge Netburn found, for that to be a condition of her release.
THE COURT: The removal of the firearm is a
commonsense safety measure. The application is denied.

Are there any further applications?
MR. FIGGINS: Yes, your Honor.
With respect to Mr. Thomas, last week, we asked for a
week to get two additional cosigners. I would just ask the
Court to give us another seven days. I've submitted the
information to the U.S. Attorney's Office, but they still need
to conduct their interview. I just don't want there to be any
issues with respect to having it completed by tomorrow, so I
would just ask the Court to extend it another seven days with
respect to getting those signers and getting it approved.
MS. DONALESKI: We have no objection to that, your
Honor.
THE COURT: All right. That deadline is extended by a
week. And I certainly have no objection to the Middle District
of Pennsylvania being included in those areas where Ms. Noel is
permitted to travel.
Is there anything further?
MS. DONALESKI: We'll just request a ruling on our
application to exclude time, your Honor.
THE COURT: Yes. The application is granted. Time is
excluded.
Is that without objection?
MR. FOY: That is without objection, your Honor.
MR. FIGGINS: That's fine, your Honor.
THE COURT: Time is excluded under the Speedy Trial
Act until April 20, 2020. I find that the ends of justice
served by excluding such time outweigh the interests of the
public and the defendants in a speedy trial because this will
allow time for the prosecution to produce discovery, for the
defense to consider it, to decide whether to prepare motions,
and for the parties to discuss a possible disposition.
The defendants' bail status shall remain the same.
The matter is adjourned.
(Adjourned)