Indictment - United States v. Rafael Martinez, (2023-01-13)

Summary

A letter dated January 13, 2023 from defense counsel to Judge Lewis J. Liman of the U.S. District Court for the Southern District of New York, filed as Document 48 in United States v. Rafael Martinez, Case No. 1:22-cr-00251-LJL. Counsel for Rafael Martinez oppose the government's motion to adjourn oral argument on his motion to dismiss Count One of the Indictment. The letter recounts the case history, including the May 2, 2022 indictment, the motion filed December 2, 2022, the government's opposition of December 23, 2022 and the reply of January 6, 2023. It states that the government intends to supersede the Indictment within fourteen days and argues that the delay may affect readiness for the May 1, 2023 trial date. The letter asks that the government concede and consent to dismissal of Count One or that argument and the Curcio proceeding go forward as scheduled.

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          Case 1:22-cr-00251-LJL              Document 48            Filed 01/13/23         Page 1 of 2




                                                tkasulis@maglaw.com
                                                    (212) 880-9555


                                                January 13, 2023

Hon. Lewis J. Liman
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007

         Re:      United States v. Rafael Martinez,
                  22 Cr. 251 (LJL)

Dear Judge Liman:

       We represent Rafael Martinez and write in response to the government’s motion
requesting an adjournment of Tuesday’s oral argument on Mr. Martinez’s motion to dismiss
Count One of the Indictment.

       The government’s motion should be denied. Mr. Martinez was arrested on February 28,
2022. He was indicted on May 2, 2022. He pled not guilty on May 12, 2022. He filed his
motion explaining the fatal defects in Count One of the Indictment on December 2, 2022. The
government did not concede error or supersede the Indictment but instead opposed the motion on
December 23, 2022. Mr. Martinez filed his reply brief on January 6, 2023. Now, on the last
business day before oral argument, the government has notified the Court that it intends to
supersede the Indictment “in an abundance of caution” at some point in the next fourteen days
and proposes putting off adjudication of Mr. Martinez’s motion further still.1

       This dilatory approach respects neither the Court’s time nor the substantial resources Mr.
Martinez has expended in briefing this issue. It may also compromise Mr. Martinez’s ability to
be ready for the May 1, 2023 trial date set by the Court. The government essentially asks the

1
  The government appears to excuse its own delay in making this request by noting the reply brief’s focus on “the
precise language of the ‘to wit’ clause contained in Count One.” (Government motion for adjournment at 1.) This
is a strange position, given that Mr. Martinez referenced the inadequacy of the “to wit” clause (among other
problems) in his initial motion papers six weeks ago, including in the very first paragraph of the Argument section.
See, e.g., Memorandum of Law at 2, 9, 11.
        Case 1:22-cr-00251-LJL        Document 48       Filed 01/13/23     Page 2 of 2




Hon. Lewis J. Liman
Page 2

Court not to rule on a fully-briefed motion highlighting the flawed nature of a crime that it
charged seven months ago because it intends to get around to charging a different crime at some
point in the future. This is inappropriate.

       The government should either concede error and consent to the dismissal of Count One or
the Court should hold oral argument – along with the Curcio proceeding – as scheduled on
Tuesday.


                                            Respectfully submitted,

                                            MORVILLO ABRAMOWITZ GRAND IASON &
                                            ANELLO, P.C.

                                            /s/ Telemachus P. Kasulis
                                            Telemachus P. Kasulis
                                            Elkan Abramowitz

                                            WILLKIE FARR & GALLAGHER LLP

                                            Michael S. Schachter
                                            Randall Jackson

                                            Counsel for Rafael Martinez

cc:    AUSA Katherine C. Reilly
       AUSA Micah F. Fergensen


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