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Transcript of Proceedings — United States v. Martinez (Dkt. 67, S.D.N.Y.)

Summary

A transcript of the March 23, 2023 plea proceeding in United States v. Rafael Martinez, No. 1:22-cr-00251-LJL, before District Judge Lewis J. Liman of the U.S. District Court for the Southern District of New York, filed April 21, 2023 as Document 67. The appearances list Assistant United States Attorneys Katherine Reilly, Micah Fergenson and Steven Kochevar and defense counsel Michael Schachter and Randall Jackson. The court accepts the defendant's waiver of indictment, authorizes the filing of the superseding information and reviews the trial rights given up by pleading guilty. The court describes the charge in Count One of the superseding information as conspiracy to commit wire fraud in violation of 18 U.S.C. Section 371. The transcript closes with the court continuing the bond as set pending sentencing; it runs 29 pages.

Summary drafted by a model from the text of the original file linked on this page and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Transcript of Proceedings — United States v. Martinez (Dkt. 67, S.D.N.Y.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/transcript-of-proceedings-united-states-v-martinez-dkt-67-s-d-n-y-c275023dda/, SHA-256 4bd62a973719b7f4b5275a8180ca1b1ec3bdb3c4476ebe2b61575ea5a3a5da08.

Full text

      Case 1:22-cr-00251-LJL   Document 67   Filed 04/21/23   Page 1 of 29   1

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1    UNITED STATES DISTRICT COURT
     SOUTHERN DISTRICT OF NEW YORK
2    ------------------------------x

3    UNITED STATES OF AMERICA,

4                v.                                 22 Cr. 251 (LJL)

5    RAFAEL MARTINEZ,

6

7                     Defendant.

8                                                   PLEA
     ------------------------------x
9
                                                    New York, N.Y.
10                                                  March 23, 2023
                                                    2:30 p.m.
11

12   Before:

13
                               HON. LEWIS J. LIMAN,
14
                                                    District Judge
15
                                   APPEARANCES
16
     DAMIAN WILLIAMS
17        United States Attorney for the
          Southern District of New York
18   BY: KATHERINE REILLY
          MICAH FERGENSON
19        STEVEN KOCHEVAR
          Assistant United States Attorneys
20
     MICHAEL SCHACHTER
21   RANDALL JACKSON
          Attorneys for Defendant
22

23

24

25


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1               (Case called; appearances noted)

2               THE COURT:     Good morning.   Ms. Ferguson, the reason

3    for our appearance today?

4               MS. REILLY:     Ms. Reilly, your Honor.

5               THE COURT:     Ms. Reilly, sorry.

6               MS. REILLY:     Yes, your Honor. We're here to have

7    Mr. Martinez arraigned on the superseding information and for a

8    change of plea.

9               THE COURT:     Is that correct, Mr. Jackson and

10   Mr. Schachter?

11              MR. SCHACHTER:     Yes, your Honor.

12              THE COURT:     I've got the waiver of indictment in front

13   of me.   I've got the superseding information and the plea

14   agreement.    Let me address myself to you, Mr. Martinez.               I

15   understand that you wish to waive indictment and to plead

16   guilty to the superseding information.         Is that correct?

17              THE DEFENDANT:     Yes, your Honor.

18              THE COURT:     Before I accept your guilty plea and your

19   waiver of indictment, I'm going to ask you certain questions so

20   that I can establish to my satisfaction that you wish to waive

21   indictment and to plead guilty because you are guilty and not

22   for some other reason.       And also to establish that you know

23   what you will be giving up by waiving indictment and by

24   pleading guilty.

25              If you do not understand any of my questions or if you


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1    want to consult with your lawyers at any time for any reason,

2    just let me know and I will give you as much time as you need

3    to do that because it is essential in order to have a valid

4    waiver of indictment and a valid plea that you understand each

5    question before you answer.

6               Do you understand that?

7               THE DEFENDANT:     Yes, your Honor.

8               THE COURT:     Mr. Fishman, would you please swear in

9    Mr. Martinez.

10              (Defendant sworn)

11              THE COURT:     You may be seated.     So, Mr. Martinez,

12   you're now under oath, which means that if you answer any of my

13   questions falsely, you may be prosecuted for the separate crime

14   of perjury.

15              Do you understand that?

16              THE DEFENDANT:     Yes, your Honor.

17              THE COURT:     What is your full name?

18              THE DEFENDANT:     Rafael Nicholas Martinez.

19              THE COURT:     And how old are you?

20              THE DEFENDANT:     57.

21              THE COURT:     How far did you go in school?

22              THE DEFENDANT:     Three and three quarter years.

23              THE COURT:     And where was that?

24              THE DEFENDANT:     Between Syracuse and FIT for a

25   production management degree.


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1               THE COURT:     Have you ever been treated or hospitalized

2    for any mental illness?

3               THE DEFENDANT:     No, your Honor.

4               THE COURT:     Are you now or have you recently been

5    under the care of a doctor or a psychiatrist?

6               THE DEFENDANT:     No your Honor.

7               THE COURT:     Have you ever been treated or hospitalized

8    for any type of addiction, including drug or alcohol addiction?

9               THE DEFENDANT:     No, your Honor.

10              THE COURT:     Have you taken any drugs, medicine or

11   pills or drunk any alcoholic beverages in the past two days?

12              THE DEFENDANT:     No, your Honor.

13              THE COURT:     Is your mind clear today?

14              THE DEFENDANT:     Yes, your Honor.

15              THE COURT:     Do you understand what is happening today?

16              THE DEFENDANT:     Yes, your Honor.

17              THE COURT:     Mr. Schachter, do you have any doubt as to

18   Mr. Martinez's competence to waive indictment and to plead at

19   this time?

20              MR. SCHACHTER:     I do not.

21              THE COURT:     Does the government have any doubt as to

22   Mr. Martinez's competence to waive indictment and to plead at

23   this time?

24              MS. REILLY:     No, your Honor.

25              THE COURT:     On the basis of Mr. Martinez's responses


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1    to my questions, my observations of his demeanor here in court

2    today and the representations of counsel, I find that he is

3    fully competent to waive indictment and to enter an informed

4    plea of guilty at this time.

5               Now, Mr. Martinez, have you received a copy of the

6    information containing the charge against you?

7               THE DEFENDANT:     Yes, your Honor.

8               THE COURT:     Did you read it?

9               THE DEFENDANT:     Yes, your Honor.

10              THE COURT:     Do you waive the public reading of the

11   information?

12              THE DEFENDANT:     Yes, your Honor.

13              THE COURT:     Have you had enough of a chance to discuss

14   with your lawyer the charge to which you intend to plead guilty

15   and any possible defenses to that charge?

16              THE DEFENDANT:     Yes, your Honor.

17              THE COURT:     Has your lawyer explained to you the

18   consequences of waiving indictment and of pleading guilty?

19              THE DEFENDANT:     Yes, your Honor.

20              THE COURT:     Are you satisfied with the reputation

21   you've received from your lawyers?

22              THE DEFENDANT:     Very, yes, your Honor.

23              THE COURT:     I have in front of me a waiver of

24   indictment form.     I'm going to mark that as Court Exhibit No.

25   1.   I'm going to give it today's date.        I'm going to have my


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1    deputy show it to you and ask you to confirm that that is in

2    fact your signature on the waiver of indictment form.              And then

3    after you've inspected the form, my deputy is going to give it

4    to Ms. Reilly for her to hold on to for safekeeping.

5               Do you have Court Exhibit No. 1, the waiver of

6    indictment form?

7               THE DEFENDANT:     Yes, your Honor.

8               THE COURT:     Is that your signature on the form?

9               THE DEFENDANT:     Yes, your Honor.

10              THE COURT:     Mr. Fishman, you may retrieve it.         Before

11   you signed the form, Mr. Martinez, did you discuss it with your

12   lawyers?

13              THE DEFENDANT:     Yes, your Honor.

14              THE COURT:     Did they explain it to you?

15              THE DEFENDANT:     Yes, your Honor.

16              THE COURT:     Do you understand that you are under no

17   obligation to waive indictment?

18              THE DEFENDANT:     Yes, your Honor.

19              THE COURT:     Do you understand if you do not waive

20   indictment and the government wants to prosecute you, it would

21   have to present the case to a grand jury which may or may not

22   indict you on this charge?

23              THE DEFENDANT:     Yes, your Honor.

24              THE COURT:     Do you understand that by waiving

25   indictment, you're giving up your right to have this case


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1    presented to a grand jury?

2               THE DEFENDANT:     Yes, your Honor.

3               THE COURT:     Do you understand what a grand jury is?

4               THE DEFENDANT:     Yes, your Honor.

5               THE COURT:     Mr. Schachter, do you know of any reason

6    that I should not find that Mr. Martinez has knowingly and

7    voluntarily waived his right to be indicted by a grand jury?

8               MR. SCHACHTER:     No, I do not.

9               THE COURT:     Does the government know of any reason I

10   should not find that the defendant Mr. Martinez has knowingly

11   and voluntarily waived his right to be indicted by a grand

12   jury?

13              MS. REILLY:     No, your Honor.

14              THE COURT:     I find that Mr. Martinez has knowingly and

15   voluntarily waived his right to be indicted by a grand jury,

16   and I authorize the filing of the information.

17              Now, sir, I'm going to explain to you certain

18   constitutional rights that you have.         These are rights that you

19   will be giving up if you enter a guilty plea.            Please listen

20   carefully to what I am about to say.         If you do not understand

21   something, stop me and your lawyer or I will explain the matter

22   more fully.

23              Under the Constitution and laws of the United States,

24   you have a right to plead not guilty to the charge contained in

25   the information.     Do you understand that?


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1               THE DEFENDANT:     Yes, I do, your Honor.

2               THE COURT:     If you did plead not guilty, you would be

3    entitled to a speedy and public trial by a jury on the charge

4    contained in the information.

5               Do you understand that?

6               THE DEFENDANT:     Yes, I do, your Honor.

7               THE COURT:     At a trial, you would be presumed to be

8    innocent, and the government would be required to prove you

9    guilty by competent evidence beyond a reasonable doubt before

10   you could be found guilty.

11              Do you understand that?

12              THE DEFENDANT:     Yes, I do, your Honor.

13              THE COURT:     A jury of 12 people would have to agree

14   unanimously that you were guilty, and you would not have to

15   prove that you were innocent if you were to go to trial.

16              Do you understand that?

17              THE DEFENDANT:     Yes, I do, your Honor.

18              THE COURT:     At that trial and at every stage of the

19   case, you would be entitled to be represented by a lawyer.              And

20   if you could not afford a lawyer, one would be appointed at

21   public expense, free of cost or any charge to you to represent

22   you.   Do you understand that?

23              THE DEFENDANT:     Yes, I do, your Honor.

24              THE COURT:     During the trial, the witnesses for the

25   government would have to come to court and testify in your


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1    presence.    Your lawyer could cross-examine the witnesses for

2    the government, object to evidence offered by the government

3    and offer evidence on your own behalf if you so desired.                And

4    you would have the right to have subpoenas issued or other

5    process used to compel witnesses to testify in your defense.

6    Do you understand that?

7               THE DEFENDANT:     Yes, I do, your Honor.

8               THE COURT:     At a trial, although you would have the

9    right to testify if you chose to do so, you would also have the

10   right not to testify.       And if you decided not to testify, no

11   one, including the jury could draw any inference or suggestion

12   of guilt from the fact that you did not testify.

13              Do you understand that?

14              THE DEFENDANT:     Yes, I do, your Honor.

15              THE COURT:     I'm not sure whether this is applicable,

16   but let me ask.    Have you had a full opportunity to discuss

17   with your lawyers whether there is a basis to seek suppression

18   of some or all of the evidence against you on the grounds that

19   your constitutional rights were violated?

20              THE DEFENDANT:     Yes.

21              THE COURT:     Do you understand that by pleading guilty,

22   you are giving up your right to make any pretrial motions or to

23   seek suppression of any evidence against you other than the

24   motions you've made already?

25              THE DEFENDANT:     Yes, I do, your Honor.


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1               THE COURT:     If you were convicted at trial, you would

2    have the right to appeal that verdict.          Do you understand that?

3               THE DEFENDANT:     Yes, I do, your Honor.

4               THE COURT:     Even now as you're entering this plea, you

5    have the right to change your mind and plead not guilty and go

6    to trial on the charges contained in the information.

7               Do you understand that?

8               THE DEFENDANT:     Yes, I do, your Honor.

9               THE COURT:     If you plead guilty, and if I accept your

10   plea, you will give up your right to a trial and the other

11   rights I've just discussed, other than the right to a lawyer,

12   which you have regardless of whether or not you plead guilty.

13   But there will be no trial, and I will enter a judgment of

14   guilty and sentence you on the basis of your plea after I've

15   considered a presentence report and whatever submissions I get

16   from your lawyer and the lawyer for the government.

17              There will be no trial and no appeal with respect to

18   whether you did or did not commit the crime charged in the

19   information.    Do you understand that?

20              THE DEFENDANT:     Yes, I do, your Honor.

21              THE COURT:     If you plead guilty, you will also have to

22   give up your right not to incriminate yourself, because I will

23   ask you questions about what you did in order to satisfy myself

24   that you're guilty as charge, and you'll have to admit and

25   acknowledge your guilt.       Do you understand that?


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1               THE DEFENDANT:     Yes, I do, your Honor.

2               THE COURT:     Do you understand each and everyone of

3    these rights?

4               THE DEFENDANT:     Yes, I do, your Honor.

5               THE COURT:     Mr. Martinez, are you willing to give up

6    your right to a trial and the other rights I've just discussed

7    with you?

8               THE DEFENDANT:     Yes, I am, your Honor.

9               THE COURT:     Do you understand you're charged in Count

10   One of the superseding information with conspiracy to commit

11   wire fraud in violation of 18 U.S.C. Section 371?

12              THE DEFENDANT:     Yes, your Honor.

13              THE COURT:     Would the government please state the

14   elements of the offense in question.

15              MS. REILLY:     Certainly, your Honor.        The offense has

16   three elements.     First, that the conspiracy charged in the

17   superseding information existed, specifically that there was an

18   agreement or understanding between two or more people to commit

19   wire fraud.

20              Second, that the defendant knowingly and willfully

21   became a member of that conspiracy; and third that anyone of

22   the co-conspirators knowingly committed at least one overt act

23   in furtherance of the conspiracy.

24              THE COURT:     Were you able to follow what the lawyer

25   for the government said?


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1               THE DEFENDANT:     Yes, your Honor.

2               THE COURT:     And do you understand that if you were to

3    go to trial, the government would have to prove all of those

4    elements beyond a reasonable doubt?

5               THE DEFENDANT:     Yes, your Honor.

6               THE COURT:     Do you understand also that the government

7    would have to prove venue, an act occurred in this district by

8    a preponderance of the evidence?

9               THE DEFENDANT:     Yes, your Honor.

10              THE COURT:     Now I'm going to tell you about the

11   maximum possible penalty for this crime.           The maximum means the

12   most that could possibly be imposed.         It doesn't mean that that

13   is what you necessarily will receive, but you have to

14   understand that by pleading guilty you are exposing yourself to

15   the possibility of receiving any combination of punishments up

16   to the maximum I'm about to describe.

17              Do you understand that?

18              THE DEFENDANT:     Yes, your Honor.

19              THE COURT:     First I'm going to tell you about the

20   possible restrictions on your liberty.          The maximum term of

21   imprisonment for the crime charged in Count One is five years,

22   which could be followed by up to three years of supervised

23   release.

24              Supervised release means you will be subject to

25   supervision by the probation department.           There will be rules


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1    of supervised released you'll have to follow.            And if you

2    violate those rules, you can be returned to prison without a

3    jury trial to serve additional time with no credit for time you

4    served in prison as a result of your sentence, and no credit

5    for any time spent on post-release supervision.

6               Do you understand that?

7               THE DEFENDANT:     Yes, your Honor.

8               THE COURT:     You should also understand that there is

9    no parole in the federal system.        And that if you were sentence

10   to prison, you will not be released early on parole. There is a

11   limited opportunity to earn credit for good behavior, but

12   you'll have to serve at least 85 percent of the time you're

13   sentenced to.     Do you understand that?

14              THE DEFENDANT:     Yes, your Honor.

15              THE COURT:     Second, in addition to these restrictions

16   on your liberty, the maximum possible punishment also includes

17   certain financial penalties.       The maximum allowable fine is

18   $250,000 or twice the gross pecuniary gained derived from the

19   offense, or twice the gross pecuniary loss to persons other

20   than yourself, whichever is greater.

21              Do you understand that?

22              THE DEFENDANT:     Yes, your Honor.

23              THE COURT:     In addition, I am required to order

24   restitution to any person or entity injured as a result of your

25   criminal conduct which you and the government agree is in the


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1    amount of $71,711,893.07.       Do you understand that?

2               THE DEFENDANT:     Yes, your Honor.

3               THE COURT:     And is that the figure that you and the

4    government have agreed upon?

5               THE DEFENDANT:     Yes, your Honor.

6               THE COURT:     I can also order you to forfeit all

7    property constituting or derived from the offense.

8               Do you understand that?

9               THE DEFENDANT:     Yes, your Honor.

10              THE COURT:     In your plea agreement with the

11   government, it is indicated that you admit to the forfeiture

12   allegation, and you agree to forfeit to the United States a sum

13   of money equal to $44,546,712.94 representing proceeds

14   traceable to the commission of the offense and all right, title

15   and interest you have in a number of items of property that

16   I'll go over with you.

17              Do you understand that?

18              THE DEFENDANT:     Yes, your Honor.

19              THE COURT:     Did you agree to that forfeiture?

20              THE DEFENDANT:     Yes, your Honor.

21              THE COURT:     Finally, I must also order a mandatory

22   special assessment of $100 dollars.

23              Do you understand that?

24              THE DEFENDANT:     Yes, your Honor.

25              THE COURT:     Do you understand these are the possible


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1    maximum financial penalties?

2               THE DEFENDANT:     Yes, your Honor.

3               THE COURT:     Are you a United States citizen?

4               THE DEFENDANT:     Yes, your Honor.

5               THE COURT:     Do you understand that as a result of your

6    guilty plea, you may lose certain valuable civil rights to the

7    extent that you have them or could otherwise obtain them now,

8    such as the right to vote, the right to hold public office, the

9    right to serve on a jury and the right to possess any kind of a

10   firearm.    Do you understand that?

11              THE DEFENDANT:     Yes, your Honor.

12              THE COURT:     Are you serving any other sentence, state

13   or federal or being prosecuted in state court for any crime?

14              THE DEFENDANT:     No, your Honor.

15              THE COURT:     Do you understand that if your lawyer or

16   anyone else has attempted to predict for you what your sentence

17   will be that their prediction could be wrong.            No one, not your

18   lawyer, not the government's lawyer, no one can give you any

19   assurance of what your sentence will be since I'm going to

20   decide your sentence and I'm not going to do that now.

21              I'm going to wait until I receive a presentence report

22   prepared by the probation department and until I receive

23   sentencing submissions from your lawyer and the lawyer for the

24   government.    After I receive that material, I'm going to do my

25   own independent calculation of the sentencing guidelines range.


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1    I'm going to consider it and any possible departures from it,

2    and I'm going to consider what a reasonable sentence is for you

3    based on the sentencing factors contained in the statute found

4    at 18 U.S.C Section 3553(a).       Do you understand all of that?

5               THE DEFENDANT:     Yes, your Honor.

6               THE COURT:     Have you discussed those issues with your

7    lawyer?

8               THE DEFENDANT:     Yes, your Honor.

9               THE COURT:     Even if your sentence is different from

10   what your lawyer or anyone else's told you it might be, even if

11   it's different from what you expect or from what's contain in

12   the written plea agreement you've entered into with the

13   government, you will still be bound by your guilty plea and

14   will not be allowed to withdraw your plea of guilty.

15              Do you understand that?

16              THE DEFENDANT:     Yes, your Honor, I'm aware.

17              THE COURT:     I have the written plea agreement that

18   you've entered into with the government.           I'm marking that as

19   Court Exhibit No. 2.       I'm going to give it today's date, and in

20   a moment I'm going to have my courtroom deputy show it to you

21   for your inspection.       It's dated March 15, 2023.        It's

22   addressed to your lawyer Mr. Schachter, Mr. Jackson and

23   Mr. Kasulis, and it's from Assistant United States Attorney

24   Reilly.

25              I'm going to ask you, sir, whether that is in fact


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1    your signature on the last page of the agreement and whether

2    you signed it today in the presence of your lawyers.

3    Mr. Fishman.    Do you have Court Exhibit No. 2 in front of you?

4               THE DEFENDANT:     Yes, your Honor.

5               THE COURT:     Is that your signature on the last page?

6               THE DEFENDANT:     Yes, your Honor.

7               THE COURT:     Did you sign it today in the presence of

8    your lawyer?

9               THE DEFENDANT:     Yes, your Honor.

10              THE COURT:     Mr. Fishman, you may retrieve and bring it

11   back to me.    Did you read the plea agreement before you signed

12   it?

13              THE DEFENDANT:     Yes, your Honor.

14              THE COURT:     And did you discuss it with your lawyers

15   before you signed it?

16              THE DEFENDANT:     Yes, your Honor.

17              THE COURT:     Did you fully understand it before you

18   signed it?

19              THE DEFENDANT:     Yes, I did, your Honor.

20              THE COURT:     Now, I want to go over some of the

21   features of the agreement that you've got with the government

22   to establish to my satisfaction that you understand the

23   agreement and what you've agreed to.

24              One of the features of your agreement with the

25   government is that you've agreed on the guidelines range that


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1    applies in this case.       Something called a stipulated guideline

2    range.   Do you understand that?

3               THE DEFENDANT:     Yes, your Honor.

4               THE COURT:     Now the plea agreement provides that you

5    agree that the stipulated guidelines range would be 108 to 135

6    months of imprisonment; but because the statutory maximum for

7    your crime is 60 months of imprisonment, the applicable

8    guidelines is 60 months of imprisonment.

9               Do you understand that?

10              THE DEFENDANT:     Yes, your Honor.

11              THE COURT:     You also have agreed that the applicable

12   fine range is $30,000 to $300,000.         Do you understand that?

13              THE DEFENDANT:     Yes, your Honor.

14              THE COURT:     That agreement is binding on you, and it's

15   binding on the government, but it's not binding on me.               I have

16   my own obligation to determine the correct guidelines range and

17   what the appropriate sentence is in your case.             I'm not saying

18   that I will come up with any range different from the one

19   you've agreed to with the government.          But if I do, then I will

20   not let you withdraw your plea even if the range I determine is

21   higher than the one you've agreed to with the government.

22              Do you understand that?

23              THE DEFENDANT:     Yes, your Honor.

24              THE COURT:     In your plea agreement you've also waived

25   your right to appeal or otherwise challenge any sentence that


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1    is 60 months or below.       In other words, if I sentence you to 60

2    months or anything less than 60 months, you would have no right

3    to appeal or otherwise try to challenge that sentence.

4               Do you understand that?

5               THE DEFENDANT:     I understand that, your Honor.

6               THE COURT:     You've also agreed not to appeal or bring

7    a collateral challenge to any fine that is less than or equal

8    to $300,000.    Do you understand that?

9               THE DEFENDANT:     Yes, your Honor.

10              THE COURT:     You've also agreed not to appeal or bring

11   a collateral challenge to any restitution amount that is less

12   than or equal to $71,711,893.07.

13              Do you understand that?

14              THE DEFENDANT:     Yes, your Honor.

15              THE COURT:     You've also agreed not to appeal or bring

16   a collateral challenge to any forfeiture amount that is less

17   than or equal to the sum of $44,546,712.94.

18              Do you understand that?

19              THE DEFENDANT:     Yes, your Honor.

20              THE COURT:     You've also agreed not to appeal or bring

21   a collateral challenge to the special assessment of $100.

22              Do you understand that?

23              THE DEFENDANT:     Yes, your Honor.

24              THE COURT:     Now, I'd like to go over with you the

25   forfeiture provisions to make sure that you understand what's


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1    contained in the plea agreement and that you've agreed to it.

2    The plea agreement provides that you admit to the forfeiture

3    allegation, and that you agree to forfeit to the government

4    both a sum of money equal to $44,546,712.94, and that you've

5    also agreed to forfeit all right, title and interest that you

6    have in a number of items of specific property numbered or

7    lettered A through J in the agreement.

8               Do you understand that?

9               THE DEFENDANT:     Yes, your Honor.

10              THE COURT:     And do you agree to forfeit both that sum

11   of money and all right, title and interest that you've got in

12   the specific property that is lettered A through J?

13              THE DEFENDANT:     Yes, your Honor.

14              THE COURT:     Do you understand that you've also agreed

15   that you will not file a claim or petition for remission of

16   mitigation in any forfeiture proceeding involving that

17   specified specific property in A through J, and will not cause

18   or assist anyone else in doing so?

19              THE DEFENDANT:     Yes, your Honor.

20              THE COURT:     And you've also agreed to take all

21   necessary steps to pass clear title to that property, including

22   but not limited to the execution of all necessary

23   documentation.

24              Do you understand that?

25              THE DEFENDANT:     Yes, your Honor.


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1               THE COURT:     And do you further understand that any

2    forfeiture of your assets will not be treated as satisfaction

3    of any fine, restitution, cost of imprisonment or any other

4    penalty that I may impose upon you in addition to forfeiture?

5               THE DEFENDANT:     Yes, your Honor.

6               THE COURT:     Are there any other provisions of the plea

7    agreement, Ms. Reilly, that I should go over with the

8    defendant?

9               MS. REILLY:     No, your Honor.

10              THE COURT:     Mr. Schachter, any other provisions of the

11   plea agreement I should go over with the defendant?

12              MR. SCHACHTER:     No, your Honor.      I just wish to note

13   that with respect to some of the items of property, they are

14   actually not in Mr. Martinez's possession for some period of

15   time, which we've discussed with the government and the

16   government is aware of.

17              THE COURT:     Mr. Martinez, does this written plea

18   agreement constitute your complete and total understanding of

19   the entire agreement between you and the government?

20              THE DEFENDANT:     Yes, your Honor.

21              THE COURT:     Other than what's written in this

22   agreement, has anyone made any promises to you or offered you

23   any inducements to plead guilty or to sign this agreement?

24              THE DEFENDANT:     No, your Honor.

25              THE COURT:     Has any threatened you or forced you to


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1    plead guilty or to sign the plea agreement?

2               THE DEFENDANT:       No, your Honor.

3               THE COURT:     Has anyone made a promise to you as to

4    what your sentence will be?

5               THE DEFENDANT:       No, your Honor.

6               THE COURT:     OK.   Now what I would like you to do now

7    is to explain to me in your own words what it is that you did

8    that makes you believe that you are guilty of the charge

9    contained in Count One of the information.           Please take your

10   time so that I can hear you and the court reporter can pick it

11   up.

12              THE DEFENDANT:       Sure, your Honor.    So on April 20th--

13   excuse me, 2020, I participated in a conspiracy to commit wire

14   fraud.   In furtherance of that, I submitted false documents to

15   the Small Business Administration, the SBA, in order to further

16   my company's application to become a PPP non-bank lender, which

17   was one of the programs available to finance companies at the

18   time.

19              We've also submitted documentation in question to

20   potential financial partners who were going to prefund some of

21   the original loans that we made.        Providing loans at that point

22   was a critical issue for me, which was providing loans to women

23   minority owned companies.        So I specifically took the

24   responsibility to do whatever I needed to do to submit those

25   applications.     I understand interstate wires were sent from the


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1    Southern District in and out.        And I'm here today to, as I've

2    always done, take responsibility for my actions.             Embarrassed,

3    my daughter is here, and sorry because my entire life I've done

4    the right thing to help others.         And as they say, I've went

5    over my skis, and I'm here to take full responsibility for my

6    actions.

7               THE COURT:     As part of the conspiracy, was there a

8    false or a fraudulent form submitted to a financial

9    institution?

10              THE DEFENDANT:     Yes.

11              THE COURT:     And did you know what you was doing was

12   wrong?

13              THE DEFENDANT:     Yes, your Honor.

14              THE COURT:     Did you know that it was illegal?

15              THE DEFENDANT:     Yes, your Honor.

16              THE COURT:     Are there any other questions that the

17   government would have me ask?

18              MS. REILLY:     Your Honor, I think Mr. Martinez said at

19   the very beginning that he participated in a conspiracy, but we

20   would just ask that you allocute him specifically that he

21   agreed with someone else to undertake the conduct he's

22   described.

23              THE COURT:     Let me ask that question.        Did you agree

24   with somebody else to undertake the contact that you undertook?

25              THE DEFENDANT:     Yes, your Honor.


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1               THE COURT:     Anything else from the government?

2               MS. REILLY:     No, thank you, your Honor.

3               THE COURT:     Mr. Schachter, let me ask you if you know

4    of any valid defense that would prevail at trial or any reason

5    why your client should not be permitted to plead guilty?

6               MR. SCHACHTER:     No, your Honor.

7               THE COURT:     Do you agree that there is a sufficient

8    factual predicate for the guilty plea?

9               MR. SCHACHTER:     Yes, your Honor.

10              THE COURT:     Do you know of any reason I should not

11   accept your client's plea of guilty?

12              MR. SCHACHTER:     No, I do not.

13              THE COURT:     Would the government please summarize for

14   me some of what the government's evidence would be if the

15   defendant were to go to trial.

16              MS. REILLY:     Certainly, your Honor.        If we were to

17   proceed to trial, the government would expect to introduce

18   communications with and applications submitted to the Small

19   Business Administration, the Federal Reserve Bank of New York,

20   an insurance company and a federally insured financial

21   institution.    Those were submitted by the defendant, and they

22   include false statements, doctored documents and a fraudulent

23   signature.    The government would also expect to introduce

24   financial records, tax returns and bank documents that show

25   both MBE, the defendant's company's true financial condition,


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1    as well as the receipt of funds from the insurance company, the

2    federal reserve bank and the Small Business Administration and

3    how those funds were dispersed.

4               The government would further expect to call witnesses

5    to testify, including individuals who worked for and with MBE,

6    individuals from the Small Business Administration, from the

7    federally insured financial institution, the Federal Reserve

8    Bank of New York, and the insurance company, as well as the

9    accountant whose signature was forged on the documents we

10   described.

11              THE COURT:     Did you hear what the government lawyer

12   said, Mr. Martinez?

13              THE DEFENDANT:     Yes, I did, your Honor.

14              THE COURT:     And did you do the stuff that she said

15   that you did?

16              THE DEFENDANT:     Yes, your Honor.

17              THE COURT:     Does the government agree that there is a

18   sufficient factual predicate for the guilty plea?

19              MS. REILLY:     Yes, your Honor.

20              THE COURT:     Does the government know of any reason

21   that I should not accept the defendant's plea of guilty?

22              MS. REILLY:     No.

23              THE COURT:     Mr. Martinez, how do you plead to Count

24   One of the information?

25              THE DEFENDANT:     Guilty, your Honor.


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1               THE COURT:      Mr. Martinez, because you acknowledge that

2    you are in fact guilty as charged in Count One of the

3    information, because I am satisfied that you know of your

4    rights, including your right to go to trial, and that you're

5    aware of the consequences of your plea, including the sentence

6    which may be imposed; and because I find that you knowingly and

7    voluntarily entered into the plea agreement and are knowingly

8    and voluntarily pleading guilty, I accept your guilty plea to

9    Count One of the information, and I enter a judgment of guilty

10   on Count One of the information.

11              The probation department will want to interview you in

12   connection with a presentence report that it will prepare.

13   Mr. Schachter, Mr. Jackson, I assume that you wish to be

14   present for any interview in connection with that report?

15              MR. SCHACHTER:      Yes, your Honor.

16              THE COURT:      I order that there be no interview unless

17   counsel is present.        Mr. Martinez, if you choose to speak to

18   the probation department, make sure that anything you say is

19   truthful and accurate.        I will read the report carefully, and

20   it is important to me in deciding what sentence to impose.                You

21   and your counsel have a right to examine the report and to

22   comment on it at the time of sentencing.

23              I urge you to read it and discuss it with your lawyer

24   before sentencing.        If there are any mistake in it, point them

25   out to your lawyer so that your lawyers can bring the mistake


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1    or issues to my attention before sentence.

2               Do you understand that?

3               THE DEFENDANT:     Yes, your Honor.

4               THE COURT:     Let me come up with a proposed date for

5    sentencing.    Mr. Schachter, Mr. Jackson, and your client, does

6    July 6, at 12 noon work for you?        If you want to consult with

7    your client and with his family, that's fine.

8               MR. SCHACHTER:     Your Honor, just because that's the

9    week of 4th of July, is it possible to do something in the

10   following week?

11              THE COURT:     I'm sure we can arrange that.         July 11th,

12   12 noon.    You want to confer with your client and his daughter.

13              MR. SCHACHTER:     Yes, your Honor.      Thank you.

14              THE COURT:     That works for government I assume?

15              MS. REILLY:     Yes, your Honor.

16              THE COURT:     Sentencing is set for July 11, 12 noon.        I

17   direct the government to provide the probation officer with its

18   factual statement within seven days.         Defense counsel must

19   arrange for the defendant to be interviewed by probation within

20   the next two weeks.

21              Counsel, I want to refer you to my individual rules

22   and practices for criminal cases available on the court's

23   website, which contain my rules regarding sentencing

24   submissions.    In accordance with those rules, the defense

25   submissions are due two weeks prior to sentencing.              The


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1    government submissions are due one week prior to sentencing.                 I

2    realize that that maybe July 4th.        You can submit it on July

3    5th from the government's perspective.

4               Mr. Schachter, I don't impose any page limits on

5    sentencing submissions, so anything that you believe is

6    pertinent to sentencing, please bring to my attention.               I

7    assume that bail can be continued as set?

8               MS. REILLY:     Yes, your Honor.

9               THE COURT:     What are the conditions?       Can you remind

10   me.

11              MS. REILLY:     Your Honor, just give me one moment.          I

12   don't have those right at hand.

13              THE COURT:     Was he released on his own recognizance?

14              MS. REILLY:     He was released on a bond.        I don't have

15   the precise conditions.

16              THE COURT:     The bond will be continued as set.

17   Mr. Martinez, you should understand that all the conditions

18   under which you were released up to now continue to apply, and

19   that a violation of any of those conditions can have very

20   serious consequences for you at the time of sentencing.

21              Do you understand that?

22              THE DEFENDANT:     Yes, I do, your Honor.

23              THE COURT:     You also must be in this courtroom for

24   sentencing at the time and date set, or you will be guilty of a

25   separate crime, that of bail jumping, subject to a find and/or


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1    prison term, in addition to whatever sentence you may receive

2    for the crime to which you just plead guilty.

3               Do you understand that?

4               THE DEFENDANT:     Yes, your Honor.

5               THE COURT:     Anything further from the government?

6               MS. REILLY:     Nothing further.

7               THE COURT:     Anything further from the defense?

8               MR. SCHACHTER:     No, your Honor.

9               THE COURT:     Thank you both, and see you at the time of

10   sentencing.

11              (Adjourned)

12

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

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