Court filing
Transcript of Sentencing Proceedings as to Andre Lorquet held on 03-30-23 — USA v. Lorquet (Dkt. 131, S.D. Fla.)
Filed May 30, 2024 in USA v. Lorquet; one of 145 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of Florida |
|---|---|
| Filed | 2024-05-30 |
U.S. District Court for the Southern District of Florida · No. 1:22-cr-20326-KMM · Doc. 131 · 2024-05-30 · Docket on CourtListener
Full text
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
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MIAMI DIVISION
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CASE NUMBER 22-20326-CR-MOORE
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UNITED STATES OF AMERICA,
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Plaintiff, Courtroom 13-1
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vs.
Miami, Florida
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ANDRE LORQUET, March 30, 2023
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Defendant.
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__________________________________________________________________
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SENTENCING PROCEEDINGS
BEFORE THE HONORABLE K. MICHAEL MOORE
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UNITED STATES DISTRICT JUDGE
__________________________________________________________________
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APPEARANCES:
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FOR THE GOVERNMENT: JONATHAN BAILYN, AUSA
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United States Attorney's Office
99 Northeast Fourth Street
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Miami, Florida 33132
305-961-9000
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Fax: 305-530-7976
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FOR THE DEFENDANT: ZELJKA BOZANIC, ESQ.
Bozanic Law, P.A.
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17100 Royal Palm Boulevard
Suite 1
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Weston, Florida 33326
954-920-9750
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Fax: 954-400-0335
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REPORTED STENOGRAPHICALLY
BY: GILDA PASTOR-HERNANDEZ, RPR, FPR, FPR-C
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Official United States Court Reporter
Wilkie D. Ferguson Jr. US Courthouse
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400 North Miami Avenue - Suite 12-2
Miami, Florida 33128 305.523.5118
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gphofficialreporter@gmail.com
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TABLE OF CONTENTS
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EXHIBITS
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Identification in Evidence
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Description Page Line Page Line
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(The following proceedings held at 3:45 p.m. were held
2 outside the presence of the defendant:)
3
THE COURTROOM DEPUTY: Calling Case Number 22-CR-20326,
4 The United States of America versus Andre Lorquet.
5
Counsel, please state your appearances beginning with
6 the Government.
7
MR. BAILYN: Good afternoon, Your Honor. Jonathan
8 Bailyn on behalf of the United States. I'm joined by HSI
9 Special Agents Ashley Olson and Jose Hernandez.
10
THE COURT: Good afternoon.
11
MS. BOZANIC: Good afternoon, Your Honor. Zeljka
12 Bozanic on behalf of Andre Lorquet.
13
THE COURT: Good afternoon.
14
(The defendant entered the courtroom.)
15
THE COURT: Okay. The defendant is present.
16
We'll take up any objections to the PSI.
17
MS. BOZANIC: Yes, Your Honor. We did have a legal
18 objection and a factual objection to the PSI.
19
THE COURT: Okay. Go ahead.
20
MS. BOZANIC: Judge, if I may start with the actual
21 legal objection, paragraphs 41 and 49, we object to the
22 enhancement as to the obstruction of justice based on 3C1.1.
23
Judge, the issue is that my client was alleged to have
24 applied for a passport or a passport card during the time after
25 he was released on bond. He was subsequently taken into custody
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 3 of 23
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1 because of that issue, and Probation has put an extra -- well,
2 an additional two-level upward adjustment based on the
3 obstruction.
4
I don't think that conduct constitutes obstruction of
5 justice. I know that the Government responded in their
6 objections to the PSI, and I believe they're in agreement with
7 me that that should not constitute obstruction of justice.
8 Specifically, note 4 of 3C1.1 specifically covers the conduct
9 where obstruction of justice applies and applying for a passport
10 card cannot be construed as committing a crime or, as the PSI
11 states, failing to withdraw from criminal conduct.
12
THE COURT: Well, I'm not sure if I understand the
13 Government's position on this, the way I read it in the response
14 that the Government's position is that there's insufficient
15 evidence from the fact of the defendant's application for a
16 passport card that the defendant consciously acted with the
17 purpose of obstructing justice.
18
Is that a position you're taking, that you couldn't
19 charge him criminally and prove it beyond a reasonable doubt; or
20 are you saying that you're looking at these facts and you don't
21 think it constitutes obstruction even by a preponderance of the
22 evidence for the guideline application?
23
MR. BAILYN: Your Honor, I don't dispute the facts of
24 what happened, but for there to have been the obstruction of
25 justice I think I would have to prove beyond a preponderance of
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 4 of 23
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1 the evidence an intent to evade law enforcement, escape law
2 enforcement, and I understand that the application for a
3 passport card could be construed that way.
4
THE COURT: What do you think he was doing?
5
MR. BAILYN: Your Honor, I don't know, Your Honor, and
6 because I don't know --
7
THE COURT: How do you not know?
8
MR. BAILYN: What he was doing? I understand the
9 inference that --
10
THE COURT: Do you know what he was doing? Do you know
11 what he did?
12
MR. BAILYN: After?
13
THE COURT: No. Do you know what he did? Is it in
14 dispute what he did?
15
MR. BAILYN: No, I don't believe that's in dispute,
16 although we have not had a violation hearing yet.
17
THE COURT: Okay. But I mean, is it in dispute
18 factually what he did?
19
MS. BOZANIC: Your Honor, some part of that factually
20 is in dispute because the Probation is talking about his father
21 who resides in Haiti and the reason why he applied for a
22 passport card is because he wanted to flee the country when, in
23 fact --
24
THE COURT: I don't care what -- his motive for doing
25 it is not an issue. Did he apply for a passport card?
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 5 of 23
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MS. BOZANIC: He did apply for a passport card --
2
THE COURT: He did.
3
MS. BOZANIC: -- for the purposes of getting a second
4 ID to open a bank account.
5
THE COURT: No, no, I'm not interested in what his
6 motive is or why he did it. He may have been doing it to save
7 the human race. That's not important. Did he do it?
8
MR. BAILYN: I don't believe that those facts are in
9 dispute.
10
THE COURT: So if he didn't do it, then was he
11 prohibited from doing that as a condition of supervised release?
12
MR. BAILYN: So his conditions of supervised release
13 prevent him from applying for a travel document.
14
THE COURT: Is that what he did?
15
MR. BAILYN: I believe that a passport card is a travel
16 document, however, Your Honor, the Government's position is that
17 motive is important and a defendant's motive --
18
THE COURT: It's not an element of a violation. It
19 could be a pure motive.
20
MR. BAILYN: I understand that it's not an element of a
21 violation of his bond, but in terms of the application of the
22 sentencing enhancement for obstruction of justice, there's
23 clearly a requirement that there be this intent to obstruct
24 justice.
25
I do not have, based on just the simple fact of him
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 6 of 23
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1 applying for a passport application, sufficient evidence for me
2 to have moved for that enhancement, Your Honor.
3
THE COURT: Was he told when he was put on supervised
4 release that he couldn't do this?
5
MR. BAILYN: I've spoken with his probation officer,
6 Jim Navarro. Yes, he said that he had a conversation with him
7 about these documents and applying for them.
8
THE COURT: And he did it anyway.
9
MR. BAILYN: Yes, Your Honor.
10
THE COURT: Okay. All right.
11
MS. BOZANIC: Judge, I would argue that the examples of
12 covered conduct that are covered in commentary note 4 of 3C1.1
13 do not cover -- some of the examples are threatening,
14 intimidating or otherwise unlawfully influencing a codefendant,
15 witness, or a juror, directly or indirectly; committing or
16 attempting to suborn perjury, including during the course of a
17 civil proceeding; producing or attempting to produce a false,
18 altered, or counterfeit document, destroying or concealing
19 evidence.
20
THE COURT: So why don't we just not tell defendants
21 that they can't do this? If it's not going to mean anything,
22 why just tell them, yeah, you can go get a passport, and we
23 really don't think just because you get a passport that you're
24 going to try and leave the country. Are we that gullible?
25
MS. BOZANIC: Judge, I think there's a difference
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 7 of 23
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1 between applying an obstruction of justice enhancement and
2 finding that he violated. Your Honor already found -- Your
3 Honor already took him into custody or signed the warrant. He
4 was taken into custody. He was not allowed to remain on bond.
5
THE COURT: Right, right. Maybe you're gullible, but
6 I'm not because I know what he was going to do and he was going
7 to flee the country and probation officer thought the same
8 thing. That's why they filed for the revoke.
9
MS. BOZANIC: Judge, the argument that was made by
10 somebody in the PSI was that he has contacts in Haiti because
11 his father resides in Haiti. He hasn't seen his father since he
12 was under five years old.
13
THE COURT: Okay. So he wasn't going to see his
14 father, he was just trying to get out of the country.
15
MS. BOZANIC: Judge, a passport card also only allows
16 you to travel to, I believe, Bahamas and possibly Canada.
17
THE COURT: Okay. So he was going to the Bahamas or
18 Canada.
19
MS. BOZANIC: Had he really wanted to travel and flee
20 the country, he would have applied for an actual passport.
21
THE COURT: Why was he applying for the passport card?
22
MS. BOZANIC: Judge, I'll tell you what I know based on
23 my conversation with my client. He was trying to open a bank
24 account after the Government closed all of his accounts. He
25 only had -- he didn't have a driver's license. I think it was
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 8 of 23
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1 suspended. He had an ID card. He needed a second ID --
2
THE COURT: And he was told that he couldn't apply for
3 a passport card.
4
MS. BOZANIC: Was he told? Judge, I wasn't there, I
5 didn't represent him from the very beginning. He had a public
6 defender. I believe that the conditions of his bond did check
7 off the box that he should not apply for travel documents, but
8 I'm just going off of what I have seen in PACER. I cannot speak
9 to --
10
THE COURT: So the probation officer says, in this case
11 Lorquet applied for a United States Passport Card on or about
12 December 1, 2022 without the Court's permission.
13
A special condition his bond was that he, "surrender
14
all passports and travel documents, if any, and not obtain
15
any travel documents during the pendency of the case."
16
MR. BAILYN: I absolutely believe that there was a
17 violation of the bond and it was revoked. However, Your Honor,
18 I don't want the Court to believe that I'm being gingerly here.
19 I do have the special agents with me. I do think that there's
20 other evidence of a different violation which is a much clearer
21 evidence of the defendant obstructing justice, but in this
22 particular incident --
23
THE COURT: Well, I'm happy to hear that, too.
24
MR. BAILYN: Thank you, Your Honor. May I proceed by
25 proffer and use the ELMO?
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 9 of 23
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1
THE COURT: Sure. If there's some objection, we can
2 call the witness.
3
MR. BAILYN: Thank you. Your Honor, would you let me
4 know if you have a copy of the Indictment in front of you? If
5 not, I can show it.
6
THE COURT: I do.
7
MR. BAILYN: Your Honor, I will show, just for the
8 benefit of the agents as well in case they are asked to speak, a
9 copy of the Indictment, and I am showing you, Your Honor, the
10 last page, which is Page 10. It's the asset forfeiture
11 allegations.
12
THE COURT: Okay.
13
MR. BAILYN: This case, of course, involves PPP fraud.
14 One of things the defendant purchased was a Lamborghini. You'll
15 notice that Subsection (iii) in the asset forfeiture allegations
16 is a Lamborghini whose VIN ends in 16143.
17
THE COURT: Right.
18
MR. BAILYN: Your Honor, I negotiated with defense
19 counsel, who was Daniel Ecarius at the time, about the
20 defendant's surrendering that Lamborghini and the reason we had
21 these negotiations, Your Honor, and I will show you -- I have
22 these marked as exhibits and I have an Exhibit List as well.
23
You will notice on November 10, 2022, I spoke with
24
Mr. Ecarius and emailed as well and said, "I am writing to
25
give him" -- the defendant -- "the opportunity to
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 10 of 23
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1
voluntarily give his Lamborghini to law enforcement pending
2
trial. HSI" -- and I am referring to the two agents I have
3
with me -- "is preparing to execute a warrant and I think
4
it's best to avoid that."
5
I thought it was best to avoid that, Your Honor,
6 because I know that the defendant when he was arrested had
7 firearms and I didn't want there to be an altercation.
8
Daniel Ecarius wrote to me, who was the Assistant
9
Federal Public Defender at the time, "Jonathan, he's willing
10
to voluntarily give the Lamborghini to law enforcement. He
11
can make it available this next Tuesday, November 15th."
12
I then wrote Daniel, "Please have him call Special
13
Agent Ashley Olson" -- who is with me at counsel table --
14
"to arrange for the drop-off."
15
Daniel confirmed he's passed on the agent info.
16 Unfortunately, Andrew Lorquet, the defendant, did not surrender
17 that Lamborghini despite my negotiations with defense counsel.
18 Rather, what the defendant did do, Your Honor -- and I am
19 showing you what's been marked as Government Exhibit 7 -- is
20 that he sold that Lamborghini on November 14, 2022. He had the
21 money, $240,000, wired to a man named Bernard Murray, who's one
22 of the defendant's associates.
23
What happened next, Your Honor -- and you'll notice,
24 Your Honor, the memo line at the bottom here, and I'm sorry it's
25 a bit small, I'm not great with the ELMO -- but it's 6143.
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 11 of 23
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1 That's the same VIN number.
2
I'm now showing you Government's Exhibit 8. These are
3 Bank of America statements from Bernard Murray, and you can see
4 the $240,000 deposit. What then happened following that
5 $240,000 deposit, Your Honor, are online banking transfers from
6 Bernard Murray, or the B Murray Group, of 50,000 and 50,000.
7 Those were transferred to a bank account ending in 6905.
8
I'm now showing you, Your Honor --
9
THE COURT: Before you leave that, can you just show --
10 so the wire transfer, the date of that is November 23rd?
11
MR. BAILYN: No, Your Honor. The date of it is
12 November 15, 2022.
13
THE COURT: November 15th, okay. That's the line
14 above?
15
MR. BAILYN: Yes, Your Honor.
16
THE COURT: 11/15 the wire in, and the date of the wire
17 out or the withdraw out?
18
MR. BAILYN: The dates that are out are the same day,
19 Your Honor.
20
THE COURT: Same day or the next day?
21
MR. BAILYN: It's the same day. So if you'll see 11/15
22 and then 11/16.
23
THE COURT: The following day.
24
MR. BAILYN: Yes. Sometimes transaction dates and
25 posting dates can be 24 hours off because of the nature of
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 12 of 23
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1 banking.
2
THE COURT: Okay. All right.
3
MR. BAILYN: Then I'll show you Government's Exhibit --
4 what's been marked as Government's Exhibit 9, and this is that
5 bank account, 6905.
6
You'll notice that on November 16, 2022, $92,000 was
7 withdrawn from Bernard Murray's account. Now, the defendant was
8 on notice, because of the Indictment, that this Lamborghini was
9 the subject of an asset forfeiture. In fact, we had filed an ex
10 parte order, but it had not been -- a protective order had not
11 yet been entered.
12
Despite my negotiation with defense counsel to have him
13 voluntarily surrender that Lamborghini, he sold it, and he
14 didn't sell it in his own name, Your Honor, because he knew that
15 would probably be illegal. What he did do is, he sold it and
16 had the money sent to somebody named Bernard Murray. Bernard
17 Murray then transferred that money to himself and then withdrew
18 that money.
19
I don't know where that $92,000 went, Your Honor, but
20 to me, that is a far more egregious violation than applying for
21 a passport card.
22
THE COURT: Well, it's another violation. We can
23 quibble about whether one is more egregious than the other, but
24 we'll add it.
25
MR. BAILYN: Thank you, Your Honor.
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1
MS. BOZANIC: Judge, I would object to any of this
2 evidence being considered by the Court. The obstruction of
3 justice regarding this conduct was not brought up in the PSI or
4 by the Government in their objections.
5
Furthermore, Judge, I actually had a conversation with
6 Mr. Ecarius, who's a public defender. After this happened, I
7 was informed that whoever the magistrate judge was told my
8 client that he didn't qualify for a public defender, or for the
9 services of a public defender, and that he should consider
10 selling some of the assets.
11
I asked Mr. Ecarius whether this was correct, whether
12 the magistrate judge said something to the effect that he
13 should or my client should go ahead and sell assets, and
14 Mr. Ecarius said, the judge possibly said something to that
15 effect, that could be construed as that. I'm not sure that the
16 judge meant that, but perhaps that's what he understood.
17
So I wasn't there, Judge. I don't know what was said.
18 I don't have a copy of the transcript, but there's an allegation
19 that my client possibly was told by magistrate judge -- and I
20 don't think any magistrate judge would necessarily mean go and
21 sell a Lamborghini that's in the Indictment, but whatever the
22 conversation was, my client believed that he can go and sell
23 assets.
24
THE COURT: Let me do this: I think on your point that
25 you were not told about this before today's sentencing hearing,
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1 I'm more than happy to continue this sentencing hearing in order
2 to give you an opportunity to investigate it because I think if
3 we are going to consider it, and I think I should consider it, I
4 don't want to do it if the defendant is going to be unfairly
5 prejudiced by considering it.
6
MR. BAILYN: Your Honor, the defense has been aware of
7 this information. In fact, the facts that I just proffered to
8 the Court were initially part of the Factual Proffer. We
9 removed it in the second version of the Factual Proffer that the
10 defendant signed. This is not information that has just
11 recently been revealed.
12
MS. BOZANIC: Judge, I'm aware of the sale of the car
13 and I actually renegotiated the forfeiture. I'm completely
14 aware of the fact that my client sold the car and there was
15 money that shouldn't have -- all I'm arguing is that he was
16 possibly told by somebody that he should go sell his assets.
17
THE COURT: Well, I think the other part of your
18 argument, though, for today really is that you were not told
19 that the Government was going to be using this information for
20 an obstruction enhancement.
21
MS. BOZANIC: Judge, if Your Honor is going to consider
22 this for the enhancement then, yes, my argument is I wasn't
23 prepared. I didn't pull the transcript from that magistrate
24 hearing to determine whether he really obstructed justice, and
25 I'm not the sure that that's where the Government is going. If
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1 they're just arguing to the Court relating what the sentence
2 should be, then I'm ready to proceed if Your Honor would
3 consider that conduct.
4
But as far as the obstruction enhancement, if the
5 Government is trying to get an obstruction enhancement at this
6 point, then I would --
7
THE COURT: Well, you know, that's what I'm saying. I
8 mean, if we're going to be using it, if we're going to be
9 considering it for purposes of guideline calculations, this
10 would give the Government an opportunity to put it forth, give
11 the probation officer an opportunity to make a determination of
12 whether it constitutes obstructive behavior. It would give the
13 defense attorney an opportunity to respond, and then, at that
14 point, it would be ripe and I could consider it all told for
15 purposes of the guideline calculation.
16
Now, I'm going to tell you what I'm going to do in any
17 event, and that is that we're obligated to consider the
18 guidelines and calculate the guidelines and do it correctly,
19 that's what we're trying to do now, but it would be my intention
20 to impose a sentence post-Booker as an alternative sentence,
21 what I think is a reasonable sentence independent of the
22 guideline calculation and the guideline sentence. So that if
23 for some reason there was an appeal on the guideline calculation
24 issue, the Circuit Court would have the benefit of knowing what
25 this Court's alternative post-Booker sentence was that the Court
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 16 of 23
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1 felt was a reasonable sentence under all the circumstances, just
2 so we put all our cards on the table.
3
I have no problem -- you know, we're not in a rush
4 here. There's no need to rush, but I'd rather get it done right
5 than get it done fast. So if you need more time to investigate
6 that or for the Government to put forward its evidence relying
7 on that, Probation to consider, I'm happy to do that.
8
I'm not going anywhere. So whether we do it today, a
9 week from now, two weeks from now, doesn't really make a
10 difference. I don't know eventually where we're going to wind
11 up, but I want to make sure that you have, the defense has the
12 time that it needs to address those issues.
13
MS. BOZANIC: Judge, may I speak --
14
THE COURT: If you need time to talk to your client, by
15 all means.
16
MS. BOZANIC: Thank you, Your Honor.
17
(There was a brief discussion off the record.)
18
MS. BOZANIC: Judge, my client would like me to ask for
19 more time.
20
Also, Judge, I'm not sure if the Court is aware, after
21 my client took a plea -- there's another issue that came up.
22 After my client took a plea and after he was taken into custody,
23 I started getting a little bit of feedback from my client and he
24 has asked me numerous times to file a motion to withdraw his
25 plea.
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 17 of 23
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1
I spoke to him a few times. I was advising against it.
2 At some point recently I filed that motion to withdraw the plea
3 based on my client's representation. One of the allegations in
4 that motion to withdraw the plea was that when he signed the
5 Plea Agreement, he believed he was signing the paperwork to
6 reinstate his bond.
7
He also alleged there was some duress, and for that
8 reason, I also filed a motion to withdraw as the attorney of
9 record, and I know that motion hasn't been addressed by Your
10 Honor. I'm not sure how to proceed at this point.
11
THE COURT: Well, I'm glad you raised it because I did
12 see it. A couple of things on that point: I didn't do any
13 further investigation, but are you court appointed?
14
MS. BOZANIC: No, Judge, I'm not.
15
THE COURT: You're retained?
16
MS. BOZANIC: Yes, Your Honor.
17
THE COURT: We can go ahead and have a hearing or refer
18 it to the magistrate just to get a recommendation as to whether
19 the plea should be withdrawn. Independent of him thinking that
20 he was signing a bond agreement, was this a plea that was taken
21 in front of the magistrate judge?
22
MS. BOZANIC: Yes, Your Honor.
23
THE COURT: Okay. So put aside whatever he thought he
24 was signing, he stood in front of a magistrate judge, raised his
25 right hand, swore to tell the truth, and I'm confident that one
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 18 of 23
19
1 of the questions that the magistrate judge asked the defendant
2 was whether he was entering his plea knowingly and voluntarily,
3 and my guess is, without having seen the transcript, he had a
4 choice of saying yes or no under oath, and I bet you if we got
5 the transcript, we would find that he said yes.
6
MS. BOZANIC: That's correct, Judge.
7
THE COURT: Okay. And they asked a whole lot of other
8 questions and he answered all those. Was he doing it freely and
9 voluntarily. I bet you he said yes.
10
MS. BOZANIC: Yes, Your Honor.
11
THE COURT: Maybe she asked him some other questions,
12 did he want to withdraw the plea. I bet you they asked him --
13 that a Factual Proffer was given where the Government laid out
14 everything that he was alleged to do and the magistrate judge
15 asked him: Did you hear it? Did you agree with that? And I
16 bet you the transcript says yes.
17
But those are reasons why -- we can have a hearing on
18 that and look at his testimony under oath and he can testify
19 then and say he thought he was -- he didn't know what he was
20 doing at the change of plea, or that he thought he was signing
21 some bond papers at some other earlier time as opposed to the
22 Factual Proffer. We'll get a Report and Recommendation. Maybe
23 the magistrate judge will say, yeah, I think he ought to be able
24 to withdraw his plea.
25
I'll get the Report and Recommendation, I'll look at
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 19 of 23
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1 it. I'll make an independent determination, and somebody along
2 the way is going to tell him also that if he wants to go trial,
3 you know, we allow him to withdraw the plea, that he understands
4 he's not going to get the three-point reduction for acceptance
5 of responsibility. We'll go through all those hoops.
6
We can do that, but if he wants to get a different
7 attorney and he's willing to pay for a new attorney, we can look
8 into that as well. You know, it would be a different story if
9 it was a court-appointed attorney, but if he wants a different
10 attorney --
11
MS. BOZANIC: Judge, it's not that he wants a different
12 attorney. I thought I had an obligation to -- as Professional
13 Rules of Responsibility, when somebody says that they were under
14 duress and they were not explained and I have a different
15 opinion or I guess there's a difference of opinion, without
16 disclosing any attorney-client privilege, I thought that it was
17 my obligation to file a motion to withdraw because I think
18 there's a conflict that was created by some of the statements.
19
THE COURT: Okay. So you want to withdraw, but he
20 wants to keep you?
21
MS. BOZANIC: Pretty much, I believe so. I think I
22 have an obligation to bring it up to the Court and I think that
23 I have an ethical responsibility that if the client is saying
24 that he didn't understand what I said and that he was under
25 duress by me or anybody related to me, that I think that there's
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 20 of 23
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1 a conflict and I'm not sure that I can proceed with the
2 representation in that case.
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THE COURT: Okay. Well, let's do this: Let's continue
4 today's sentencing.
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MS. BOZANIC: Yes, Your Honor.
6
THE COURT: You've got a motion to withdraw. You have
7 not responded to the motion to withdraw?
8
MR. BAILYN: I objected to -- I'm sorry. I had no
9 objection to the motion to withdraw, Your Honor. Defense
10 counsel consulted me or conferred before filing it, but if it
11 would prevent or it would allow the Court not to continue
12 today's sentencing, I'm not moving for an obstruction of justice
13 enhancement even based on the evidence that I've shown you.
14
I just wanted to fully flesh out facts for the Court
15 for it to consider however it may under 3553.
16
THE COURT: What was the purpose behind putting all
17 that in?
18
MR. BAILYN: Your Honor, because when I want to make an
19 argument for a sentence under the 3553(a) factors, I want the
20 Court to be fully apprised about the information that has come
21 to light since the Indictment, but I did not file for an
22 enhancement and I did object to -- excuse me -- I did agree with
23 the defendant's objections to the obstruction of justice
24 enhancement for the passport card because I didn't think there
25 was sufficient intent that I could show from the Government's
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 21 of 23
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1 side of the courtroom.
2
THE COURT: All right. Well, let's go ahead and
3 continue the sentencing. We'll refer the motion to withdraw --
4 we will either grant it and give the defendant a period of time
5 within which to obtain new counsel -- let me think about this --
6 or we can refer it to the magistrate judge and address the issue
7 of obtaining new counsel and what period of time they would
8 need. But did you say that he also wanted to move to withdraw
9 his plea of guilty as well?
10
MS. BOZANIC: Yes, Your Honor.
11
THE COURT: Have you filed a motion in that regard,
12 too?
13
MS. BOZANIC: Yes, Your Honor. They were filed at the
14 same time.
15
THE COURT: So we'll do that as well. And then, I
16 think to the extent that even if you're not moving for an
17 enhancement for obstruction of justice, I believe you should
18 provide Probation with any and all information that you may have
19 in the Government's possession that would assist the Court in
20 fashioning an appropriate sentence. And you don't have to move
21 for obstruction, but I think Probation and the Court and defense
22 ought to be aware of what that information is.
23
MR. BAILYN: That's why I have the special agents with
24 me, Your Honor, it develops.
25
THE COURT: Well, I'm glad to have them here. I'll be
Case 1:22-cr-20326-KMM Document 131 Entered on FLSD Docket 05/30/2024 Page 22 of 23
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glad to see them again.
MR. BAILYN: Thank you, Your Honor.
3
THE COURT: Okay. All right.
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5
6
MS. BOZANIC: Thank you, Your Honor. Judge, will we
get the date through the CM/ECF?
THE COURT: Yes.
7
MS. BOZANIC: Okay.
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(The hearing concluded at 4:15 p.m.:)
C E R T I F I C A T E
I hereby certify that the foregoing is an accurate
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transcription of proceedings in the above-entitled matter.
______________ _______________________________________
DATE GILDA PASTOR-HERNANDEZ, RPR, FPR, FPR-C
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Official United States Court Reporter
Wilkie D. Ferguson Jr. U.S. Courthouse
6
400 North Miami Avenue, Suite 12-2
Miami, Florida 33128 305.523.5118
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gphofficialreporter@gmail.com
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05-30-24
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