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SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
N1HYMARC
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x
UNITED STATES OF AMERICA,
v. 22 Cr. 251 (LJL)
RAFAEL MARTINEZ,
Defendant.
Curcio Hearing
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New York, N.Y.
January 17, 2023
10:35 a.m.
Before:
HON. LEWIS J. LIMAN,
District Judge
APPEARANCES
DAMIAN WILLIAMS
United States Attorney for the
Southern District of New York
BY: KATHERINE CANNELIA REILLY
Assistant United States Attorney
WILKIE FARR & GALLAGHER LLP
BY: RANDALL W. JACKSON
MICHAEL SCHACHTER
STEVEN BELLEW
- AND -
MORVILLO ABRAMOWITZ GRAND lason & ANELLO P.C.
BY: TELEMACHUS P. KASULIS
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(212) 805-0300
N1HYMARC
(Case called)
THE DEPUTY CLERK: Counsel, for the government, please
state your appearance for the record.
MS. REILLY: Good morning. Katherine Reilly for the
government.
THE COURT: Good morning.
MR. JACKSON: Good morning, your Honor. Randall
Jackson, Michael Schachter, and Telm Kasulis on behalf of
Rafael Martinez. Also present today, your Honor, is our
associate, Steven Bellew.
THE COURT: Good morning to you. And good morning,
Mr. Martinez.
This matter was originally scheduled for oral argument
on the motion to dismiss the indictment. Since the scheduling
of that, I've received a letter from the government dated
January 4, 2023, requesting that I conduct a Curcio hearing in
light of the application of Mr. Bellew, an associate at Wilkie
Farr, for a position as an assistant United States attorney in
the Southern District of New York. And I've indicated that we
would hold a Curcio hearing today based upon that potential
conflict of interest.
I also received a letter from the government
indicating that the government intended to supersede the
indictment. And in light of that intention and at the
government's request and over the defendant's opposition, I
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rescheduled the oral argument on the motion to dismiss the
indictment.
So it's my intention today to conduct a Curcio
hearing, using primarily the government's proposed Curcio
hearing questions. I've got a couple of questions for counsel
about those questions which I'll ask in a moment.
After conducting the Curcio hearing, I'm going to
inquire of the government its anticipated timing with respect
to the superseding indictment and discuss with counsel whether
there is a need for any further briefing or anticipated need
for any further briefing on the motion to dismiss the
indictment. And then I'll be prepared to address any other
matters that counsel wants to raise with me.
So with that in mind, a couple of questions about the
proposed Curcio hearing questions.
First, from the defense, is there any objection to me
asking the questions suggested by the government?
Mr. Schachter or Mr. Jackson?
MR. JACKSON: No, your Honor.
THE COURT: There are a couple of things that I've
got. First of all, from Wilkie Farr's perspective, I take it
Wilkie Farr is retained in this case.
Am I correct about that?
MR. JACKSON: That's correct.
THE COURT: Is there any need for me to ask that
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particular question?
MS. REILLY: No, your Honor.
THE COURT: Is there counsel from Morvillo Abramowitz
present today?
MR. KASULIS: I am, your Honor. Telm Kasulis.
THE COURT: Mr. Kasulis, just so I know for purposes
of the question, has your client discussed with you the issues
that are raised in the Curcio hearing and Mr. Bellew's interest
or potential conflict of interest?
MR. KASULIS: Yes.
THE COURT: Then let me ask the questions of
Mr. Martinez.
Does the government think that Mr. Martinez needs to
be placed under oath for this? I don't think so.
MS. REILLY: I don't believe so, your Honor.
THE COURT: Mr. Martinez, let me address myself to
you.
I've got a series of questions. If you don't
understand any of my questions, just tell me that, and I'll try
to rephrase them. If you want to discuss any of the questions
that I've asked with your counsel, just let me know that.
It's critically important that you understand all of
the questions that I ask before you answer them. So, unless
you tell me you don't understand a question, I'm going to
assume that you understand a question.
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Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: How old are you, sir?
THE DEFENDANT: Fifty-seven.
THE COURT: How far did you go in school?
THE DEFENDANT: Third year of college.
THE COURT: Are you currently consulting a doctor for
any condition?
THE DEFENDANT: No, your Honor.
THE COURT: Are you currently under the influence of
alcohol or drugs of any kind?
THE DEFENDANT: No, your Honor.
THE COURT: Are you feeling well enough to proceed
with the hearing today?
THE DEFENDANT: Yes, your Honor.
THE COURT: And do you understand the purpose of the
hearing today?
THE DEFENDANT: Yes, your Honor.
THE COURT: Is your mind clear today?
THE DEFENDANT: Yes, your Honor.
THE COURT: Now, are you currently represented by,
among other attorneys, Michael Schachter, Randall Jackson, and
Stephen Bellew of the law firm Willkie Farr & Gallagher LLP?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you know, sir, that Mr. Bellew has
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applied for a position with the United States Attorney's Office
for the Southern District of New York? That is, the office
that is currently prosecuting you.
THE DEFENDANT: Yes, your Honor.
THE COURT: Now, because of Mr. Bellew's pending
application with the United States Attorney's Office for the
Southern District of New York, I wish to advise you of certain
matters.
You should understand that under the Constitution and
laws of the United States, you are entitled to the aid and
assistance of counsel at all times in these proceedings. You
are entitled to counsel of your own choice, unless there is a
strong legal reason for disqualifying that counsel. If you
could not afford an attorney, an attorney would be appointed to
represent you without costs.
Do you understand all that have?
THE DEFENDANT: Yes, your Honor.
THE COURT: And it is essential to the idea of an
adequate defense in a criminal proceeding that your attorney
have no conflicts or adverse interests of any kind. That is to
say, he cannot, unless it is with your knowledge and consent,
have any conflicting interest in the case.
You have the right to the assistance of a lawyer whose
loyalty to you is undivided and not subject to any factor that
might intrude upon that loyalty. The purpose of this law and
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these principles is to ensure that you have the full, devoted
defense furnished to you by an attorney who has no possible
interest of any kind in this matter.
Do you understand all of that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Now, this Court, having presided as the
judge in a number of trials in this courthouse and having
served as counsel for a long time, believes that representation
where there is a potential conflict of interest may be
ill-advised.
Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you understand that Mr. Bellew's
application for employment with the United States Attorney's
Office for the Southern District of New York as a prosecutor
creates a potential that he may have allegiances to interests
that may be adverse to your own interests?
Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you understand that by deciding to
proceed with Mr. Schachter, Mr. Jackson, and Mr. Bellew as part
of your defense team, you are waiving any argument, after your
sentencing, that they were ineffective or deficient in their
representation of you because Mr. Bellew suffered from a
conflict of interest by virtue of his application for a
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position with the United States Attorney's Office?
Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Now, have you discussed these conflict of
interest matters with Mr. Schachter, Mr. Jackson, and
Mr. Bellew?
THE DEFENDANT: Yes, your Honor.
THE COURT: Are you satisfied with their
representation of you?
THE DEFENDANT: Yes, your Honor.
THE COURT: Now I want you to describe for me in your
own words your understanding of the conflict of interest that
potentially arises from Mr. Bellew's representation of you
while pursuing his application for a position with the
United States Attorney's Office as a federal prosecutor.
THE DEFENDANT: Well, my understanding is that a
member of our legal team has applied for a position with the
very same office as is prosecuting me. But I feel comfortable
with the team that I have, the lead team, extremely
comfortable, with my defense going forward.
THE COURT: Do you understand that with respect to
Mr. Bellew specifically, that Mr. Bellew's application to the
very office that's prosecuting you may create for him a
conflict of interest in that he might have interest with the
U.S. Attorney's Office that would be inconsistent with his
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interest in protecting you and your interests?
THE DEFENDANT: I understand that.
THE COURT: Now, do you understand that you've got a
right to consult with a lawyer, other than Mr. Schachter,
Mr. Jackson, and Mr. Bellew, in order to determine whether you
wish Wilkie Farr to continue to represent you?
THE DEFENDANT: I do, your Honor.
THE COURT: And have you consulted with any attorney,
other than Mr. Schachter, Mr. Jackson, and Mr. Bellew, to
determine whether you wish Wilkie Farr to represent you and to
discuss the issue of potential conflict of interest?
THE DEFENDANT: Well, I've had conversations with one
of our attorneys that is here today, Mr. Kasulis, and feel very
comfortable moving forward with the additional team of Wilkie
Farr.
THE COURT: So have you discussed with Mr. Kasulis of
the Morvillo firm the issues of potential conflict of interest
and your right to undivided counsel?
THE DEFENDANT: Yes. And I feel extremely comfortable
moving forward with them.
THE COURT: If you wanted the opportunity to consult
with Mr. Kasulis further, I would give you that opportunity.
Do you understand that?
THE DEFENDANT: I do, your Honor.
THE COURT: Now, I've got no other questions for
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Mr. Martinez, unless the government has any questions. I do
have questions for defense counsel.
MS. REILLY: No other questions for Mr. Martinez.
THE COURT: Thank you, Mr. Martinez.
I guess I should address myself to you, Mr. Jackson.
Is that fair?
MR. JACKSON: If it pleases the Court.
THE COURT: Mr. Jackson, have you and Mr. Schachter
and Mr. Bellew discussed the potential conflicts of interest
with Mr. Martinez?
MR. JACKSON: We have, your Honor.
THE COURT: Do you feel that he understands the
possible risks of being represented by a lawyer with potential
conflicts of interest?
MR. JACKSON: Yes, your Honor.
THE COURT: Let me just ask one or two more questions
of Mr. Martinez.
Mr. Martinez, you may retain seated.
Thank you, Mr. Jackson.
Mr. Martinez, if you wanted, I would give you several
more days to consult about the conflict of interest issues.
Do you want those several days?
THE DEFENDANT: No, your Honor. I'm comfortable with
the decision moving forward with the team.
THE COURT: Is there anything that the Court has said
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that you wish to have explained further?
THE DEFENDANT: No, your Honor.
THE COURT: Is anything unclear?
THE DEFENDANT: No. Everything is clear.
THE COURT: And are you prepared to proceed with
representation by Wilkie Farr, understanding the potential
risks?
THE DEFENDANT: Yes, your Honor.
THE COURT: Anything further the government would have
my ask?
MS. REILLY: No, your Honor.
THE COURT: Anything further the defense would have me
ask?
MR. JACKSON: No, your Honor. Thank you.
THE COURT: All right. I find that Mr. Martinez has
knowingly and voluntarily waived any potential conflict of
interest that arises from Mr. Bellew's application to the
United States Attorney's Office for the Southern District of
New York.
Now let me address some of the other matters.
What is the government's anticipated timing with
respect to the superseding indictment?
MS. REILLY: Your Honor, in our letter we filed on
Friday, we have asked for 14 days. And I think that is a
conservative estimate. I am hopeful we will have a superceding
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indictment this week. But I have asked for the extra time just
in light of the vagaries of scheduling with the grand jury.
So this week is my best estimate. If you can give us
the 14 days, I think that would be helpful. We'll obviously
let the Court and defense counsel know as soon as a superseding
indictment is returned.
THE COURT: So 14 days -- I don't have the calendar in
front of me.
MS. REILLY: I was thinking two weeks from last
Friday, your Honor.
THE COURT: So that would be the 27th.
MS. REILLY: Yes, your Honor.
THE COURT: Am I correct in understanding that there
won't be any new counts? It's just going be to changes to the
mail fraud or the wire fraud count?
MS. REILLY: Yes, your Honor. That's correct.
THE COURT: So let me ask, Mr. Jackson. We'll need to
arraign Mr. Martinez on the superseding indictment.
Is there any reason why that couldn't be done on
February 17, which is the date that we've got scheduled for
oral argument?
MR. JACKSON: No, your Honor. That would be our
preference.
THE COURT: Working off of the date of January 27 as
the latest date for the superseding indictment, I anticipate
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that you might want to put in papers addressing the effect of
the superseding indictment, whether or not it cures the defect
that you've identified.
I'm going to want that obviously in advance of
February 17, sufficiently in advance that the government would
have a week to respond to whatever you've put it in.
What's your request in that respect?
MR. JACKSON: May I have just one moment, your Honor?
(Pause)
MR. JACKSON: Your Honor, would our filing any papers
by February 3, with the government filing by February 10, be
acceptable to the Court?
THE COURT: That is. If you want to put in a reply,
you would put it in by February 14 at 5:00 p.m.
Are those dates acceptable to the government?
MS. REILLY: Yes, your Honor.
THE COURT: And to you, Mr. Jackson?
MR. JACKSON: Yes, your Honor. Thank you.
THE COURT: February 3 for a supplemental brief from
defense counsel addressed to the effect of the superseding
indictment with respect to the current motion to dismiss
indictment and the arguments in there. February 10 for the
government's opposition. February 14 for the reply.
Is there anything further from the government to
discuss today?
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MS. REILLY: Nothing further from the government, your
Honor.
THE COURT: Mr. Jackson, anything further?
MR. JACKSON: Nothing further. Thank you, Judge.
THE COURT: Thank you, all. Apologies that we got
started a little bit late this morning. See you on
February 17.
(Adjourned)
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