Opinion
05-CR-1077-1 (RA)
04-04-2022
UNITED STATES OF AMERICA v. MUSTAFA OZSUSAMLAR, Defendant.
ORDER
Hon. Ronnie Abrams United States District Judge
Defendant Mustafa Ozsusamlar, proceeding pro se, moves for reconsideration of the Court's Order of December 9, 2021, which denied his motions under Federal Rules of Criminal Procedure 32, 35, 36, and 52(b). Dkts. 164, 165. He has also submitted a “Motion for the Court to Direct the Clerk of the Court to Find [the] Original Record and Transcript” of his sentencing. Dkt. 166. For the reasons that follow, both motions are denied.
A defendant seeking reconsideration must show either “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). “Reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Accordingly, a reconsideration motion “may not be used to advance new facts, issues or arguments not previously presented to the Court, nor may it be used as a vehicle for relitigating issues already decided by the Court.” Simon v. United States, Nos. 12-cv-5209, 07-cr-474 (ER), 2021 WL 242360, at *2 (S.D.N.Y. Jan. 25, 2021). Given Mr. Ozsusamlar's pro se status, the Court interprets his filings to “raise the strongest arguments that they suggest.” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
In its December 9, 2021 Order, the Court found that Mr. Ozsusamlar gave “no legitimate reason for the Court to suspect that [his sentencing] transcript does not accurately represent what was stated at sentencing.” Dkt. 164. In his reconsideration motion, Mr. Ozsusamlar maintains that “the sentencing transcript . . . is not accurate.” Dkt. 165 at 1. The only new “fact” he raises in support of this argument, though, is an allegation that he communicated with one of the interpreters present at the sentencing, who agreed that “there are portions missing from the transcript” and offered to testify under oath as to the inaccuracy of the current transcript. Id. Without a sworn declaration from this individual, the Court does not find Mr. Ozsusamlar's assertions persuasive.
Even if Mr. Ozsusamlar were correct that Judge Leisure stated at the hearing that his sentence began to run on the date of his indictment, the result would not change. “It is the responsibility of the BOP, rather than the courts[, ] to determine the commencement of a federal sentence.” Cintron v. Warden, F.C.I. Otisville, 52 F.Supp.3d 654, 655 (S.D.N.Y. 2014). Mr. Ozsusamlar relies on the rule that “[t]he only sentence that is legally cognizable is the actual oral pronouncement in the presence of the defendant, ” United States v. Marquez, 506 F.2d 620, 622 (2d Cir. 1974)-but stating the date at which a sentence begins or might begin to run is not part of the pronouncement of a sentence, meaning that any statement by Judge Leisure to this effect would not have divested the BOP of its responsibility to determine the commencement of the sentence.
All of Mr. Ozsusamlar's remaining arguments were already made in his initial motion and are thus not appropriate for reconsideration.
In response to Mr. Ozsusamlar's request to direct the Clerk of Court to find the original audio recording and transcript of his sentencing, the Court clarifies that the transcript it attached to its prior Order is the original transcript of that sentencing. The Court has also directed the court reporter's office to file on the public docket both that transcript and the certification attesting to the accuracy of that transcript. See Dkts. 170, 171. Those documents are attached to this Order for Mr. Ozsusamlar's convenience. There is no audio recording of the sentencing.
Finally, Mr. Ozsusamlar appears to move for the appointment of counsel to pursue an application pursuant to Section 404 of the First Step Act to reduce his sentence. See Dkt. 167. “Because there is no merit to the application under the First Step Act, and no basis to conclude that any such application would have any merit, the application for appointment of counsel is denied, and the application for relief under Section 404 of the First Step Act is denied.” United States v. Jenkins, No. 15-cr-0386 (JGK), 2021 WL 1987064, at *1 (S.D.N.Y. May 18, 2021). Mr. Ozsusamlar was convicted of murder for hire and conspiracy to commit the same, 18 U.S.C. § 1958, and conspiracy to commit extortion, 18 U.S.C. § 1951. Dkt. 91. “Because Sections 2 and 3 of the Fair Sentencing Act did not modify the statutory penalties for” these statutes, his “violation of that law is not a covered offense eligible for a sentence reduction under Section 404(b) of the First Step Act.” United States v. Fletcher, No. 20-1180, 2021 WL 1823277 (2d Cir. May 7, 2021).
The Clerk of Court is respectfully directed to terminate the motions at dockets 165 and 166 and mail a copy of this Order to Mr. Ozsusamlar.
SO ORDERED.
November 8, 2007
MICHAEL J. GARCIA United States Attorney for the Southern District of New York
MIRIAM ROCAH, Assistant United States Attorney
MARTIN J. SIEGEL, ESQ. Standby Attorney for Defendant
INTERPRETERS: A.J. ELTERMAN ASIYE KAY
Before: HON. PETER K. LEISURE, District Judge
(Case called)
THE COURT: We will swear in the interpreters.
(Interpreters sworn - A.J. ELTERMAN and ASIYE KAY)
THE COURT: As I have done in the past with the cases by the father and son, Osman, I have made a summary statement because I think it's helpful to the higher court, and also different issues have been raised by the father and son. There are some similarities but it's important to keep them separate for considerations at sentencing and other matters that we have had to come up.
So I am going to do the same thing here before I hear from the parties. Although the background of this case has been well covered at numerous post-trial conferences that we have had following the conviction by a jury, I will summarize the events that have led up to today's sentencing.
On April 20, 2006 a jury convicted Mustafa Ozsusamlar, who I will refer to as either Mustafa or the defendant in this proceeding, and his son, Osman Ozsusamlar, who I will refer to as Osman, of conspiracy to commit a murder for hire and the substantive crime of murder for hire in violation of 18 U.S.C. Section 1958, and conspiracy to commit extortion in violation of 18 U.S.C. Section 1951.
I want to ask the interpreters to tell me if I am moving too quickly.
I know the defendant speaks English and occasionally he has responded in English but at the same time he has requested that we have translations and that he have an opportunity to speak in Turkish, as he deems appropriate, or in English, and we will accommodate him.
Mr. Siegel, who is standby counsel, has conversed with him in English but he has used the interpreter when he deemed it appropriate.
All three counts were charged in a superseding indictment filed on January 4, 2006. As I said, the defendants are father and son. Mustafa is the father and Osman is the son. Mustafa is before the court today for sentencing.
The events underlying the charges took place between August 2005 and October 2005. The case involved a man who owed approximately $283,000 to the two defendants. Mustafa, while incarcerated at the Metropolitan Correctional Center (the "MCC") pending sentencing following his conviction in a separate case, asked a fellow prisoner -- who was a cooperating witness ("CW") -- if he knew of someone who could collect the debt, by force if necessary, and kill the man, and possibly also his wife, after the debt was collected. Mustafa offered to pay the killer 10 percent of the money collected. After the CW informed the government of Mustafa's request, the government arranged for an undercover agent (the "Agent") named "Joe" to pose as a collector/hit man. The CW provided thee agent's information to Mustafa.
Mustafa, via phone, directed Osman to contact the agent. Osman did so, and arranged a meeting at which the two discussed the details of the scheme. Some time later, the agent called Osman to tell him that he had collected the debt and carried out the scheme. Osman and the agent made arrangements to meet, and Osman was arrested when he arrived at the agreed-upon location. Mustafa was arrested the next morning. The intended victims were not harmed.
Subdivision II. Post trial activities.
Following the verdict, while still represented by his trial counsel, Barry Turner, Esq., Mustafa sent numerous communications directly to the court regarding his representation as well as his concerns about and challenges to the jury verdict. Based on Mustafa's written requests, the court held conferences on August 26, 2006, March 20, 2007, April 4, 2007, and June 5, 2007 to discuss his concerns. At the April 4, 2007 conference, the court granted Mustafa's request to proceed pro se. Martin J. Siegel, Esq., who is here today, from the Criminal Justice Act panel currently serves as Mustafa's standby counsel.
On June 5, 2007, the court granted Mustafa's request for a hearing in order to place on the record evidence regarding certain of Mustafa's pro se motions, including a request for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal procedure, for a new trial pursuant to Rule 33 of the Federal Rules of Criminal procedure, and more dismissal of the charges against him pursuant to Rule 12(b)(2) of the Federal Rules of Criminal procedure. That hearing was conducted on August 14, 2007. By opinion and order dated September 20, 2007, Mustafa's motions were denied.
The Pre-Sentence Report ("PSR") for Mustafa was prepared on January 23, 2007 and revised on February 21, 2007. The revision reflected that on January 29, 2007, Mustafa was sentenced to 235 months imprisonment by Chief Judge Kimba M. Wood in a separate criminal case. Through his standby counsel, Mustafa submitted his sentencing memorandum on October 9, 2007. The government briefly responded on October 10, 2007 in order to clarify the record as it related to some of Mustafa's objections. Mustafa submitted another sentencing-related letter dated October 19, 2007, to which the government did not respond.
Sub-heading III. Sentencing Post-Booker.
I will now turn to the sentencing of the defendant based on the submissions made by the parties. First, I will discuss the factors that I am required to consider in determining your sentence.
As a result of two opinions issued in 2005, the sentencing guidelines are no longer mandatory. United States v. Booker, 534 U.S. 220, 243-44 (2005); see United States v. Fernandez, 443 F.3d 19, 26 (2d Cir. 2006). Today, "pursuant to the remedy opinion, the now advisory guidelines are to be considered, together with the other factors set forth in 18 U.S.C. Section 3553(a), by judges fashioning sentences." Fernandez, 443 F.3d at 26. The Second Circuit has articulated the following steps for a sentencing court to follow: "A sentence will satisfy the requirements of Booker and the Sixth Amendment if the sentencing judge (1) calculates the relevant guidelines range, including any applicable departure under the guidelines system; (2) considers the calculated guidelines range, along with the other Section 3553(a) factors and (3) imposes a reasonable sentence." Id.
Subdivision A, calculation of the guidelines range.
In United States v. Crosby, 397 F.3d 103, 112 (2d Cir. 2005), the Second Circuit instructed sentencing courts that "the applicable guidelines range is normally to be determined in the same manner as before Booker/Fanfan." Thus, as was the case before Booker, facts relied on in sentencing need only be proven by a preponderance of the evidence. See United States v. Vaughn, 430 F.3d 518, 525 (2d Cir. 2005) (Sotomayor, J.) (noting that in the Second Circuit "judicial authority to find facts relevant to sentencing by a preponderance of the evidence survives Booker," and finding that "district courts remain statutorily obliged to consider the guidelines in the same manner as before Booker") (quotations and citations omitted).
Subdivision B. Consideration of the guidelines range and the Section 3553(a) factors.
While usually "a guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances," the Second Circuit -- in accord with other courts of appeals -- has "declined to establish any presumption, rebuttable or otherwise, that a guidelines sentence is reasonable." Fernandez, 443 F.3d at 27. Consequently, a district court is required to "consider" the advisory guidelines range, an inquiry that is impossible to define and, thus, better left to the discretion of the sentencing judge. Crosby, 397 F.3d at 113 ("we think it more consonant with the day-to-day role of district judges in imposing sentences and the episodic role of appellate judges in reviewing sentences, especially under the new applicable standard of reasonableness, to permit the concept of consideration in the context of the applicable guidelines range to evolve as district judges faithfully perform their statutory duties.").
The Second Circuit recently held that such consideration does not include a "requirement that a sentencing judge precisely identify either the factors set forth in Section 3553(a) or specific arguments bearing on the implementation of those factors in order to comply with its duty to consider all the Section 3553(a) factors along with the applicable guidelines range." Fernandez, 443 F.3d at 29; accord United States v. Flemming, 397 F.3d 95, 100 (2d Cir. 2005) (Newman, J.) ("as long as the judge is aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable, and nothing in the record indicates misunderstanding about such materials or misperception about their relevance, we will accept that the requisite consideration has occurred.").
While a sentencing judge is not required to articulate its consideration of each and every Section 3553(a) factor, the Second Circuit has made clear that it "continues to encourage sentencing judges to facilitate our review by providing complete and detailed explanations regarding their sentencing decisions." Fernandez, 443 F.3d at 31 n.8; Crosby, 397 F.3d at 116 ("district judges will, of course, appreciate that whatever they say or write in explaining their reasons for electing to impose a guidelines sentence or for deciding to impose a non-guidelines sentence will significantly aid this court in performing its duty to review the sentence for reasonableness.").
The Section 3553(a) factors are:
1. The nature and circumstances of the offense and the history and characteristics of the defendant;
2. The need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate
deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
3. The kinds of sentences available;
4. The kind of sentence and the sentencing range provided for by the sentencing guidelines;
5. Any pertinent policy statement issued by the Sentencing Commission;
6. The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and,
7. The need to provide restitution to any victims of the offense.18 U.S.C. Section 3553(a).
Subdivision paragraph IV. The parties' proposals to the court.
I will now address the PSR and Mustafa's October 9 and October 19 sentencing memoranda. As I stated earlier, the government did not submit a sentencing memorandum, but only responded to a few of Mustafa's objections in order to clarify the record.
Subdivision A. Probation.
Probation determined that Mustafa's criminal history category was IV and calculated his total offense level to be 33.
Mustafa's criminal history category was determined by the sum of his criminal history points. Under U.S.S.G. Section 4A1.1A, any prior sentence exceeding one year and one month equals 3 points. Mustafa had two such sentences, one in 1995 and the other in 2007, yielding 6 criminal history points. Additionally, under U.S.S.G. Section 4A1.1D, 2 points were added because Mustafa committed the instant offense while imprisoned. Accordingly, Mustafa had a total of 8 criminal history points, placing him in criminal history category IV.
Probation's calculation of the offense level of 33 was based on their grouping of the counts into two groups. Specifically, pursuant to Section 3D1.2 of the guidelines, which allows for the grouping of counts with substantially the same harm, Counts 1 and 2 -- conspiracy to commit murder for hire and murder for hire in violation of 18 U.S.C. 1958 -- were grouped together into "Group One." The base offense level for these counts was calculated based on Section 2E1.4 of the guidelines, which provides for a base offense level of 32.
The remaining Count 3 (conspiracy to commit extortion in violation of 18 U.S.C. 951) is its own group, "Group Two." The base offense level for this count was calculated based on U.S.S.G. Section 2B3.2, which provides for a base offense level of 18. While there were no adjustments recommended for Group One, leaving the total offense level at 32, probation recommended 3 enhancements to the Group Two base offense level for specific offense characteristics:
1. An increase by two levels because the offense involved an expressed or implied threat of death, bodily injury, or kidnapping. U.S.S.G. Section 2B3.2B1;
2. An increase of 3 levels because the amount demanded was more than $250,000 but less than $800,000. U.S.S.G. Section 2B3.1B7D; and, 3. An increase of three levels because the offense involved preparation to carry out a threat of death. U.S.S.G. Section 2B3.2(3)(B)(I).
Accordingly, the total offense level for Group Two is 26. Probation then determined the combined offense level pursuant to U.S.S.G. Section 3D1.4. According to the calculation, Group One counts as one unit, and Group Two counts as one half unit. This results in a combined offense level of 33.
The resulting guidelines range for criminal history category IV and an offense level of 33 is 188-235 months. Probation recommends a sentence of 188 months imprisonment. Probation also recommends that this sentence be followed by 3 years of supervised release. Notably, probation states that, pursuant to Section 5G1.3 of the guidelines, this sentence must run consecutively to the 235 month sentence imposed by Chief Judge Wood in United States v. Ozoglu et al., 02 Cr. 763. Finally, probation recommends waiving the fine because Mustafa is subject to a $20,000 fine imposed by Chief Judge Wood. Probation believes this sentenced adequately reflects the serious nature of the defendant's offense, and would sufficiently further the criminal justice system's objectives of punishment and deterrence.
Subdivision B. Mustafa.
Mustafa submitted a memorandum to the court dated October 9, 2007, listing 26 objections to the PSR. As the government notes in its response, the vast majority of Mustafa's submission consists of "attempts to reargue the trial evidence." Other objections have no bearing on Mustafa's sentencing. For the record, the court notes that paragraph 9 of the PSR should be clarified to state that, after a jury conviction on a variety of charges, District Judge Debevoise entered a judgment of acquittal on those charges related to hostage-taking. Further, that same paragraph should state that Mustafa's 1995 conviction actually took place in May, and not in September. Paragraph 64 of the PSR should read that Mustafa was convicted on May 14, 2004. Mustafa does make two arguments related to his sentence. First, he asks the court to "sentence the defendant to a term that reflects that no one was actually threatened, harmed or injured." (Defendant's 10/9 memo at 4.) Second, he urges the court to impose a concurrent sentence to Chief Judge Wood's 235-month sentence. (Id.)
Mustafa's second submission to the court, dated October 19, 2007, rehashes arguments he has already raised following trial. Namely, Mustafa argues that evidence used in his trial was fabricated, altered and hidden, witnesses were hidden and tainted by the government, and transcripts from the trial were altered. (Defendant's 10/19 memo at 1-4.) This court generally addressed these issues in an opinion and order on September 20, 2007, finding Mustafa's claims to be wholly without merit. Of course, Mustafa may argue these points in an appeal to the Second Circuit Court of Appeals, but they have already been disposed of here, and are thus not pertinent to today's sentencing. Mustafa's October 19 letter does raise two points related to sentencing. First, defendant requests a departure for giving substantial assistance to the authorities. He states that he "provided the government with evidence that helped in arresting and convicting people involved in crime . . . ." (Id. at 5.) Second, defendant asks the court to consider his community service. Specifically, Mustafa leads prayer services for fellow inmates, donated funds to the Turkish education department to construct a school, and served as mayor of a town in Turkey from 1970 to 1974. (Id..)
I am going to take a ten-minute recess at this point and then I am going to hear from the parties when we come back with anything that they wish to add.
We will take a ten-minute recess.
(Recess)
THE COURT: Another advantage of a recess before continuing, it allows me to review my notes and I do see an error I made where I indicated that the sentence before Chief Judge Wood consisted of a fine of -- and I said $200,000 and it was $20,000. So I make that correction for the record. I think probably the reporter picked it up when I was going through it.
Now, I think it's a good time to hear from both sides before I actually calculate the sentence with regard to this guidelines range. So before I make that determination, I might ask standby counsel first whether he has anything he wishes to add.
MR. SIEGEL: Good morning, your Honor.
If it please the court, I think the defendant will be addressing court in detail as far as certain issues. The only thing I would like to raise is, number one, that you recommend to the Bureau of Prisons that he be confined to a facility as close to New York as possible and, in addition, if he can be in the same facility as his son is. That would be one recommendation.
Just on the issue of the concurrent versus the consecutive, the Pre-Sentence Report makes reference for authority to a guidelines provision. However, I do not believe that such a requirement is found in the statute, such as in 924(c), a violation would require by statute a mandatory consecutive sentence. I think on the offense here calling for a consecutive sentence, they make reference to a guidelines statute and as the court is aware the guidelines are advisory versus being mandatory, such as the statutory provision. So my only comments would be what I submitted to the court is whatever sentence the court imposes and I think the Probation Department recommended on two counts 120 months to run concurrent with a sentence of Count 3 of 188 months. The only thing I would ask is that that sentence run concurrent with that of Judge Wood's.
And the defendant would like to address the court, your Honor.
THE COURT: Let's me give the government a chance to consider what you are saying. They might want to comment on it.
I have given consideration prior to our coming down here today with regard to what you are raising and why don't we see how I handle it, and then I will hear from both sides at this that point.
MR. SIEGEL: And just for the record, I am referring to page 21 of the report, the second paragraph, where it reads pursuant to Section 5G1.3A the instant offense must run consecutive to the undischarged term of imprisonment, and again 5G1 is not a statute but it's a guidelines provision.
THE COURT: Well, the government can be considering your comments and hear what I have to say when I have further dialogue on it.
Now I will hear from Mustafa before I impose sentence.
Any comment?
THE DEFENDANT: Yes, your Honor. I have eternal unlimited respect to the honorable judge in this court. Your Honor, whether your judgment will be in my favor or against me, I believe that your decision will reflect the human rights facts of this country and given the background, your own conscientiousness and your long years of service as a judge, and that you will be doing this with a peace of mind, and I trust that. Your Honor had already mentioned that I should bring forth certain statements that might have impact in the future in my case, for the future, so I would like to in particular mention something pertaining to the CDs that you had pointed out that I can do that.
If possible I would like to propose that as attorney for the appeals, attorney Elizabeth Fink, should be appointed.
THE COURT: The name is Finkelstein, is that correct?
MR. SIEGEL: It's Elizabeth Fink, your Honor.
THE DEFENDANT: The address is 13 Gaye Street, New York, New York 10014.
THE COURT: Is she on the CJA panel?
MR. SIEGEL: I think Ms. Fink is on the panel, your Honor.
THE COURT: I will be hearing from the government not at this moment on it but the government will comment at any time they wish to with regard to any of these matters that are being raised at this point or after I impose the sentence. So I will leave it up to the government. Some of these matters are to be considered after the sentence, I suppose.
THE DEFENDANT: Your Honor, my second request, if possible I would like to have detectives assigned to do some research and investigation pertaining to my case.
My third request is that after my sentence has been spoken that my sentence be served, that I serve my sentence at least 5 to 6 months in the prison that I am presently in and the reason for this is, your Honor, is because I have four separate cases, two of which are in the Southern District and two of which are civil cases and in order to pursue them I need to be close to this area.
THE COURT: I can make recommendations to the Bureau of Prisons and they often follow my recommendations, but the final decision with regard to where you are placed is the Bureau of Prison's decision and they will certainly extend every courtesy to the court, but they make the final decision. But the government may have something to add too.
Please continue.
THE DEFENDANT: I can see that your Honor has already mentioned the points that I wanted to mention here. The sealed record of the CD dated September 18, 2005 was mailed to me by the judge two weeks ago. This CD was shown to the jury as Government Exhibit 21 as a sealed evidence, a sealed exhibit.
THE COURT: In which case are you talking about it was shown to the jury, is it my case or someone else?
THE DEFENDANT: This case, your Honor.
THE COURT: You are saying that Government Exhibit 21 used in the case before me was shown to the jury?
THE DEFENDANT: Yes.
THE COURT: And what is your point? What are you requesting me to do about that?
THE DEFENDANT: It is evident here that this sealed document was not taken into seal and for 160 days it was under seal.
THE COURT: Do you understand what his grievance is? I ask the government counsel.
MS. ROCAH: No, your Honor, I don't.
THE COURT: I don't understand.
MR. SIEGEL: Your Honor, I think there was an issue when a CD was taken, and I think his position is that one of the CDs that was used at trial I think the defendant contends that there was a hiatus of 160 days from when the recording was made to when it was placed under seal.
Is that correct?
THE DEFENDANT: Yes.
MR. SIEGEL: And I think the defendant's position, your Honor, is that during that 160-day period that the CD was tampered with and therefore it was corrupted.
THE COURT: This goes to tampering, an issue which he has already raised.
Does the government have anything to add to that? Do you need more time to consider it?
MS. ROCAH: No, your Honor, I will address it.
THE COURT: All right. The government will respond before we leave here today.
THE DEFENDANT: The judge permitted $4,000 to be used for the forensic testing of the CD. There was an amount of $3200 paid to the effect that the forensic test was done but there is no report that we have in our hand and here it doesn't show anywhere that it went to forensic testing. Why was this money paid? This is the government's duty to find out if somebody is stealing this money.
THE COURT: Does the government understand what his grievance is?
MS. ROCAH: Your Honor, I think the defendant is referring to this envelope that the CD was contained in, the FBI envelope in which the CD had been contained which has some dates on it. Basically every time the CD is taken out of the sealed envelope it's logged in and out by the agent taking it in and out and he seems to be referring to the fact that there is no indication on that FBI envelope about the test or the CD being sent for forensic testing. That is the best I can understand what he is saying.
I don't think there would be any indication on that envelope of a CD being sent to forensic testing since it's not the government who sent it. It was something requested by the defendant and we never had anything to do with any kind of forensic testing. We never sent anything for forensic testing. We never got a report. It's just not something the government is involved with.
THE COURT: It's something that should have been raised during the trial rather than sentencing.
MS. ROCAH: Yes.
THE COURT: So he is raising it today but, in any event, as I have said before he can raise on appeal these issues, but I have done the best I can to explain to him. He doesn't seem to listen to his lawyers, which has been part of of his problem, and he continues to be taking positions which don't necessarily make sense. But, in any event, we must move ahead.
What else have you got to say here today?
THE DEFENDANT: This is not a position or some kind of opinion that I am mentioning but I received it two weeks before.
THE COURT: You should have taken it up with your lawyer. You are now your own lawyer, so I am hearing you but I think you are wasting time.
Let's move ahead.
What else have you got to raise here today?
THE DEFENDANT: There is a certain point I would like to mention.
At the hearing on August 14 there was a T-Mobile telephone bill that I showed here, 973, 650, and also a telephone with a number 5806. I showed this telephone bill here to the court but when I went to the Marshals Service it was taken away from my file. Who took it, I don't know.
Another point I would like to make, your Honor, is that the address of 349 12th Avenue in Paterson, New Jersey, my son Osman lives at his home on the third floor -- I am sorry, at the same address with Osman, my other son, Ramazan lives on the third floor. The garage door to this home was broken and there was a search undertaken, performed there. Two weeks later, two weeks after that the door to the basement was broken and the inside was searched. Again, two weeks later again the third floor door was opened and someone went inside. Only written documents, family photographs and CDs were taken. And the camera was removed, taken away, removing it out of its case, and the door was locked again and the people left.
When a thief comes into someone's home they steal articles, goods, they don't steal written documents and they don't take a camera removing it from its case. They take it together with the case.
This is something that was done by Campanella and the staff working at his office. We think, we guess, that this was done by them in order to eliminate evidence. At the MDC, the prison where I serve my sentence, my CDs were eliminated or destroyed, disappeared, and the CDs of my son were taken away and exchanged with other ones, replaced with other ones.
The fact that these things have been done, and apart from that my son Ramazan is under pressure by people working at Campanella's office. A person like my son may have committed an offense, possibly, but New Jersey is a different state. There is a judge, a prosecutor, police and FBI there. Instead of all these authorities getting involved, why is Campanella's office getting involved and pursuing this? Why do they feel the need to question, interrogate somebody who has his full civil liberties under pressure?
Where are the human rights? Where is democracy? Where is liberty?
THE COURT: Let me hear from the government. I don't know whether he is raising again matters he has already raised or whether these are the first time that he has voiced these additional items. We know we have been dealing with him over the period of time and that is the reason the sentencing has been delayed as long as it has been and I held conferences, as I indicated, at the beginning of these proceedings to address his concerns and we tried to keep up with his unending complaints and criticisms.
Are these being raised for the first time today as far as the government is concerned?
MR. SIEGEL: Your Honor, if I can just relate what the defendant's position is because he told me about this the other day when I met with him at the MDC. Apparently he feels there is a major conspiracy going on which is being directed by Special Agent Jack Campanella against the defendant and his family and his position is that Special Agent Campanella is directing this group of people to go in, search his home on other occasions, to basically try to coerce his son into violating the law. He also feels Special Agent Campanella had advised the marshals to remove certain documents from his file after the last court appearance because they felt or Special Agent Campanella felt these documents may have been advantageous to his case. And while he was in the marshals' lock-up apparently Special Agent Campanella or Ms. Rocah or someone else from the prosecutorial team directed the marshals to remove items from his legal file.
I think that is what the defendant is alleging, your Honor.
THE COURT: Let me hear from the government.
MS. ROCAH: Your Honor, I hesitate to say that these have never been raised before only because the defendant has previously raised just about every conceivable claim he could raise. So I think in some form or another he has raised these before and your Honor has I think basically said that there is no evidence in the record anywhere of any of these unsubstantiated claims.
To the extent they haven't been raised before obviously this is not the appropriate time to raise them but I think more importantly in the multitude of hearings and conferences and arguments and of course from the trial itself, there is obviously no evidence in the record of any of these paranoid claims on the defendant's part. And they are totally extraneous to the issues related to trial and his conviction and his sentencing.
THE COURT: All right.
Is there anything else you wish to raise today?
Maybe you should listen to your lawyer as to what is appropriate to be raising at your sentencing and what are matters which are not appropriate.
Have you talked to him, Mr. Siegel, at all about bringing common sense and reason to him as a client of yours?
MR. SIEGEL: Your Honor, without obviously divulging attorney-client communications, the defendant and I have had many, many conversations about how the matter should proceed. But I think the defendant feels that it should be proceeding in a particular manner. He has prepared a written statement to the court which he is reading right now and the defendant is the captain of his ship.
THE COURT: He is his own lawyer.
MR. SIEGEL: If the court wishes to view that ship as the Titanic, that is something else, but the defendant is prepared and he has written a statement and he has certain positions about the conduct of the prosecution and the agents involved in this case.
THE COURT: Well, the lawyer representing as standby counsel his son raised the issue that he has never in his considerable experience as a criminal defense lawyer had a client that hurt himself more post conviction by his conduct than his son did.
I hate to see the same thing happening with his father but he doesn't seem to listen to anyone and he has his own mind of how he wants to handle things and there are things that should be raised and there are things that are extraneous and are not appropriate at the time of his sentence. He has the chance to appeal with respect to the matters that have happened and my rulings in connection with them, but we have to move ahead. We have reached the point where unless the government tells me they are matters that are concerning the government and that are matters that I should take into consideration, we have to move ahead.
What does the government say?
MS. ROCAH: Your Honor, the government has no reason whatsoever to delay the sentencing.
THE COURT: All right. If he has a statement that he has prepared he might want to hand it in as an exhibit and it will be part of the record on appeal. Otherwise he can read it if he wishes to.
Why don't you talk to him, Mr. Siegel, as to the best way to proceed now. He seems to be bringing up matters that shouldn't be considered at the time of the sentencing but he has done this before, and he is doing it again.
Why don't you talk to him and see how you recommend he proceed.
MR. SIEGEL: Your Honor, I know he has prepared a statement. The statement is not in English. It's in Turkish. I don't think it's all that lengthy. I think he has read most of it. I would suggest we just proceed.
THE COURT: All right, why don't we proceed.
THE DEFENDANT: I would like to remind only one thing to your Honor. The witness named Mabrouk, who is a cooperating witness, and the case agent Campanella and the prosecutor, Ms. Rocah, and in my case with Judge Wood the case agent is Campanella and the prosecutors are Southwell and Rocah.
That is it, thank you.
THE INTERPRETER: I think he wanted to point out that the both people were involved in both cases.
THE DEFENDANT: Thank you very much.
THE COURT: He has completed his comments.
Does the government want to add anything more based on what he said?
MS. ROCAH: I wanted to address a couple of things raised by Mr. Siegel and the defendant just for clarity of the record. I will be very brief. First of all -- not raised by Mr. Siegel but raised by the defendant in his last letter which the government did not respond to in writing. One of claims was that there was substantial assistance on his part to the government. I just want to say for the record that there was absolutely no substantial assistance by the defendant. The government has never credited any information that this defendant has attempted at times to send in incoherent letters to the government. They have never acted on it. They have never used it. There is just no substantial assistance whatsoever that has led to any FBI or other agency cases.
Most of these issues we have been over again and again and as your has pointed out, the defendant will have a chance to appeal and the record will speak for itself. This issue about the tampering with the CD and the sealing of the envelope, the FBI envelope in which the CD was contained which marks each time that the CD was taken in and out of evidence for proffer purposes, for what purpose it was taken in and out, is in evidence as a Government exhibit. The government produced a copy of that to the defendant as he requested. It wasn't the first time he has seen it as he is claiming now because it was also available at trial. The dates on that will speak for itself. The defendant's claims about there being a lapse in time are just frivolous. And I hate to even credit them with any response but I am just trying to give a little bit of clarity to the record for the appeal.
The issue about the concurrent versus consecutive time, I believe Mr. Siegel is correct that it's mandatory but under the guidelines it's mandatory that it be consecutive and obviously the guidelines are advisory. The government would request, however, that guidelines or no guidelines that this court impose a consecutive sentence because this crime, which is obviously extremely serious in nature, was completely separate from the first case which he was tried before Judge Wood, which was a fraud identity theft, a large one, in which, by the way, I was not involved in. I was not a prosecutor in the case. That was only Mr. Southwell. But, in any event, the defendant clearly should be punished separately for those two cases because one has absolutely nothing to do with the other and it makes the crime that he committed here substantially more serious that he was able to commit it and attempt to commit such a serious crime from prison while facing trial before another judge in this courthouse.
I guess the last thing that I just wanted to address, and we can talk about this after your Honor imposes sentence, but the request that the defendant be imprisoned with his son and his request that he be held here for a certain amount of time and all of his various demands about that, obviously as your Honor pointed out the court can make recommendations. The government doesn't usually take a position on such things, although I will say in this case I think that the Bureau of Prisons already is aware and will be made further aware that the very nature of this crime here had to do with the son and the father conspiring together and that the government's belief is when the two of them are together they present a much greater danger to society, not to mention to FBI agents and prosecutors who are responsible for them being in jail. And so while we normally don't take a position I think here we would recommend to the Bureau of Prisons that they be separated and my understanding is that the Bureau of Prisons will be doing that based on the nature of the crime here.
THE COURT: How about him getting yet another lawyer appointed which he is requesting as appellate counsel who would have to familiarize herself with the entire record at taxpayer expense?
MS. ROCAH: Your Honor, it seems indulgent in a way that the government obviously would not recommend. However, I hesitate to take a position only because I believe Mr. Siegel is actually going to be making a motion to have himself removed and so I will let Mr. Siegel and the court speak to that. We do think it's a bit wasteful at this point.
THE COURT: I would be remiss if I didn't express my appreciation to the standby counsel for both the father and son and the diligent way they went about their work and tried to be of assistance to their clients. Mr. Siegel is to be complimented for the time and effort that he has put into representing Mustafa even though, as he rightly said, attorney-client privilege is such that he should not be asked to comment on his representation and his conversations. But I do want to commend him for what I have noticed here in court of his patience and his wanting to help his client, as was true in Mustafa's son's case too. So it's a credit to the CJA panel that lawyers of your quality are available and make the efforts you do. I am very impressed by the way you went about, Mr. Siegel, your representation of Mustafa. But I will hear from you.
MR. SIEGEL: Thank you very much. I appreciate those comments, your Honor, truly I do, as a member of the bar and as an individual.
While Ms. Rocah was speaking, the defendant handed me Government Exhibit 25 and he likely wants to make mention of page 3 of that exhibit. Apparently there is a comment, and again I am just reflecting what he wants on the record, but apparently there were conversations mentioned on page 3 of that document where there appear to be people speaking Arabic and I believe the conversations here were in Turkish, which is an entirely different language than Arabic.
In addition, your Honor, based upon my representation of the defendant all along, I am going to make an application to be relieved at this point after the notice of appeal is filed and I think Ms. Fink might be willing to take over the case. I think based upon my representation of Mr. Ozsusamlar and his feelings about having new counsel, I think it's probably in everybody's best interest that after this proceeding that the court allow me to be relieved as counsel.
THE COURT: All right. I will take that under advisement but the government isn't opposing your application, as I understand it.
MS. ROCAH: That is correct, your Honor.
THE COURT: And we don't know at this point whether Ms. Fink has been contacted and has indicated a willingness to proceed.
Does the government know?
MS. ROCAH: I have no idea, your Honor. I hadn't heard about that until today.
MR. SIEGEL: Just bear with me, your Honor.
(Pause)
MR. SIEGEL: I don't think the defendant has spoken to Ms. Fink, your Honor.
THE COURT: I think it's appropriate, Mr. Siegel, based on all of your time and effort and conscientious work on behalf of your client, that the court grant your application as soon as new counsel is appointed.
Would this be standby counsel or appellate counsel? You might talk to your client to find out the role of the replaced counsel.
MR. SIEGEL: I think he indicated this would be appellate counsel, your Honor.
THE COURT: All right. So that we will move ahead with that consideration, but you will remain as counsel until we do have a person in place
MR. SIEGEL: Yes, your Honor.
THE COURT: -- representing Mustafa.
I think at this point, as time has gone by, I hoped maybe to give the sentence, which isn't going to be that long. We only have about an hour more but I think probably with the time being what it is, we all should proceed after lunch because otherwise I may not be through by 1 o'clock at this point.
Are counsel available if we take our lunch recess now and complete the matter within about an hour?
MR. SIEGEL: Yes, your Honor, that is fine with me.
THE COURT: How about government counsel?
MS. ROCAH: Your Honor, I have some things scheduled this afternoon. I can try to move them. I didn't know we were coming back after lunch.
THE COURT: I will go ahead. Why don't I see how we go. There isn't that much left.
I am not going to request that counsel stand with his client during this period as we do sometimes because I think it's good for you both to be seated and, Mr. Mustafa, feel free to talk to your lawyer as we proceed to the extent you want to get advice.
Subdivision V. Determination of defendant's sentence.
Subdivision A. Calculation of the guideline range.
I will now discuss the court's determination of defendant's sentence. First, I will explain the calculation of the guidelines range.
Probation found that defendant's criminal history category is IV and total offense level is 33. Under the plain language of Section 3D1.2 of the guidelines, however, 32 is the appropriate total offense level. Though defendant did not raise this point in his sentencing memoranda, the court will apply the same reduction in offense level to Mustafa as it applied to his co-defendant, Osman Ozsusamlar. The relevant guidelines provision states that counts involving "substantially the same harm shall be grouped together into a single group." U.S.S.G. Section 3D1.2. In defining the phrase "substantially the same harm," the guidelines specify that" counts involve substantially the same harm within the meaning of Section 3D1.2 (a) when counts involve the same victim and the same act or transaction." (U.S.S.G. Section 3D1.2.) There is no question here that all three counts involved the same victim and the same act or transaction. As I stated earlier, in categorizing Count 3 -- conspiracy to commit extortion in violation of 18 U.S.C. 951 -- as a separate group, probation recommended various enhancements. Because the three counts in this case should be grouped together as one, a detailed analysis of these recommended enhancements is unnecessary. Thus, the appropriate total offense level is 32.
The guidelines provision for a total offense level of 32 and a criminal history category of IV is a term of 168-210 months imprisonment.
Defendant asks the court to consider a departure under section 5K.1 of the guidelines, which allows for a departure "upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense . . . ." U.S.S.G. Section 5K1.1. The government has made no such motion here. Further, while Mustafa states that he gave information to prosecutors in 2001, he fails to provide any detail relating to such assistance. The court therefore has no reason to depart from the applicable guidelines range.
B. Consideration of Section 3553(a) factors.
As I am obligated to do following Booker and Crosby, I turn now to consideration of the Section 3553(a) factors. As I stated earlier, Mustafa asks the court to sentence him "to a term that reflects that no one was actually threatened, harmed or injured." (Defendant's 10/9 memo at 4.) Mustafa additionally informs the court of a few acts of community service. (Defendant's 10/ 19 memo at 5.) These points implicate Section 3553(a(1), which obligates the court to consider the "nature and circumstances of the offense and the history and characteristics of the defendant," and Section 3553(a)(2(A), which requires that the sentence imposed reflects the seriousness of the offense. The facts relevant under Section 3553(a) do not weigh in favor of imposing a non-guideline sentence. Mustafa's criminal history demonstrates that he is unlikely to abide by the law and that he poses a significant threat to the public. Here, Mustafa orchestrated a scheme from prison, using his son Osman, to have a man and his wife killed over a debt of less than $300,000. Despite the fact that no one was ultimately harmed, this certainly is a serious offense, and points to Mustafa's continued inability to abide by the law.
C. Other considerations.
Mustafa also asks for this court's sentence to run concurrently to the sentence imposed by Chief Judge Wood in United States v. Ozoglu et al., 02 Cr. 763. Mustafa's conviction in the instant matter is for conspiracy to commit a murder for hire, murder for hire, and conspiracy to commit extortion, all of which occurred while he was serving a term of imprisonment for another offense. Under such circumstances, the guidelines provide that "the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment." U.S.S.G. Section 5G1.3A. However, 18 U.S.C. Section 3584 gives the court some discretion to impose a concurrent sentence after weighing the factors listed in 18 U.S.C. Section 3553(a). See United States v. Perez, 328 F.3d 96, 97 (2d Cir. 2003) ("the courts of appeals that have considered the matter now agree that U.S.S.G. Section 5G1.3A and 18 U.S.C. Section 3584 are not in conflict, and that the consecutive sentence mandate of Section 5G1.3A precludes concurrent sentencing except insofar as the sentencing judge identifies grounds for a downward departure."). As I previously discussed, the Section 3553(a) factors present in this case do not weigh in defendant's favor. Thus, today's sentence will run consecutively to the sentence imposed by Chief Judge Wood.
D. Imposition of a reasonable sentence.
Under Second Circuit precedent, the final step in the post Booker/Crosby sentencing environment is the imposition of a reasonable sentence. Fernandez, 443 F.3d at 26. Under this consideration, a court reviewing whether a sentence is reasonable does so not only by looking at the sentence itself, "but also at the procedures employed in arriving at the sentence." Id. at 26 (citing United States v. Crosby, 397 F.3d 103, 114 (2d Cir. 2005) (Newman, J.); see also United States v. Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005). The review of a sentence for reasonableness is "akin to review for abuse of discretion." Fernandez, 443 F.3d at 27. Therefore, a sentence will be unreasonable only where the judge imposing it has "exceeded the bounds of allowable discretion, . . . committed an error of law in the course of exercising discretion, or made a clearly erroneous finding of fact." Id. (citing Crosby, 397 F.3d at 114).
Further, the Fernandez court "declined to establish a presumption, rebuttable or otherwise, that a guidelines sentence is reasonable." Id. However, it did hold that in the "overwhelming majority of cases" a guidelines sentence will fall well within the range of sentences that will be considered reasonable. Given that no mitigating factors apply to Mustafa, imposing a sentence below the guideline range would be unreasonable as "exceeding the bounds of allowable discretion."
Based on the considerations that I have already stated, the court finds that Mustafa's criminal history category is IV and his offense level is 32. This corresponds to an advisory sentence range of 168-210 months.
Based on the written submissions as well as consideration of the parties' statements today, the court hereby sentences the defendant to 188 months in prison, consisting of the statutory maximum 120 months for Counts 1 and 2, to run concurrently, and 68 months for Count 3, to run consecutively. The total punishment of 188 months imprisonment is to be followed by 3 years of supervised release. This sentence is to run consecutively to the 235-month sentence imposed by Chief Judge Kimba Wood in United States v. Ozoglu et al., 02 Cr. 763.
The court accepts probation's recommendation that defendant's fine be waived because he is subject to a $20,000 fine imposed by Chief Judge Wood. The defendant is ordered to pay an immediate special assessment of $300 ($100 per count) to the United States pursuant to 18 U.S.C. Section 3013. The court accepts all other mandatory conditions of incarceration recommended by probation in the PSR.
It's probably useful if I actually read those mandatory conditions and the standard conditions from pages 21 to 22 of the PSR.
Mandatory conditions: If a period of probation/supervised release is ordered, the following conditions are mandatory: The defendant shall not commit another federal, state or local crime. The defendant shall not illegally possess a controlled substance. The defendant shall not possess a firearm or destructive device.
The mandatory drug testing condition is suspended based on the court's determination that the defendant poses a low risk of future substance abuse.
The defendant shall cooperate in the collection of DNA as directed by the probation officer.
Standard and special conditions.
The standard conditions of supervision 1-13 will apply in this case with the following special conditions:
1. The defendant shall obey the immigration laws and comply with the directives of immigration authorities.
The defendant is to report to the nearest probation office within 72 hours of release from custody. If the defendant is sentenced to any period of supervision, it is recommended that the defendant be supervised by the district of residence.
Now, the requests made during these proceedings, other than what I have already covered, I will indicate for the Bureau of Prisons to consider having the defendant incarcerated as close to New York City as possible.
I do not recommend that he be incarcerated in the same facility as his son for the reasons stated here by the government today. Efforts will be made to obtain appellate counsel to represent the defendant on appeal, and to be appointed as appellate counsel.
I will ask Mr. Siegel to be sure that the time does not run from filing a notice of appeal while he still is representing him since we don't know how long it will take for him to have appellate counsel in place.
I will leave it up to appellate counsel whether or not a request will be made to have a detective assigned in connection with considerations of the appeal and the government may or may not oppose that application depending on the reasons given.
Anything else that the government would want me to add to that?
MS. ROCAH: No, your Honor.
This is implicit in what you said, but the defendant obviously needs to be advised of his right to appeal also.
THE COURT: Yes.
MR. SIEGEL: Your Honor, I know that when the defendant said he wanted a detective appointed, I think probably the appropriate translation would be investigator as opposed to a detective.
THE COURT: All right.
MR. SIEGEL: What I will do is once we conclude this session today, I will immediately go down and file a notice of appeal on his behalf.
The only thing is while the court was reading the decision in and knowing what the sentence would be, I inquired of the defendant whether he wished -- and I know sometimes this can be arranged -- whether he wanted to serve his sentence here or in Turkey and he indicated that he wished to serve his sentence here in the United States as opposed to serve the sentence in Turkey, and I guess having seen the old movie Midnight Express I can appreciate why he would want to serve it in this country as opposed to Turkey.
THE COURT: Well, that issue isn't before the court.
MR. SIEGEL: I understand, your Honor. But I just wanted to raise this. I did advise or find out whether he wanted that recommendation to be made and he does not want it to be made.
THE COURT: Does the government think that should be included?
MS. ROCAH: No.
THE COURT: I don't think it's an issue.
MR. SIEGEL: Okay.
Your Honor, just before the court
THE COURT: But needless to say if I am wrong on that and unexpectedly the Bureau of Prisons indicates that he should be serving his sentence in Turkey, there should be an application made to me in that regard and I will consider what you are saying here today at that point.
MR. SIEGEL: As I said, the defendant said he does not wish to serve his sentence in Turkey.
Just one other thing before the the sentence is imposed. I would like to point out that if the court does in fact impose a consecutive sentence upon the defendant, according to my preliminary calculations, he probably will be approximately 95 years old before he would be released and, again, I would ask the court to reconsider whether based upon -- it would effectively become a life sentence for the defendant, and whether the court would reconsider and impose your sentence as a concurrent as opposed to a consecutive sentence.
THE COURT: I have fully considered the amount of time involved, the seriousness of the offenses, and all the other factors and the sentence I imposed was having those considerations in mind, so I need not reconsider. I did impose the sentence with those considerations in mind.
Anything else the government wished me to consider?
MS. ROCAH: No, not to consider, your Honor.
MR. SIEGEL: If the court would bear with me for one moment, your Honor.
(Pause)
THE COURT: I think formally I should advise the defendant, as the government suggested, that you have a right to appeal and I understand your standby counsel is going to actually file a notice of appeal. But the government is correct in requesting that I actually advise you of your right to appeal since if a notice of appeal is not filed, you will waive that right.
MR. SIEGEL: If the court will bear with me for one moment, I think the defendant would like to tell me something.
(Pause)
MR. SIEGEL: Your Honor, the defendant has a technical question and the defendant would like to know when for computation purposes, when does your sentence begin to run? Does it run from when the crime occurred, which was sometime in October, September-October 2005, or does it run or commence from a later time?
THE COURT: It may well be that as soon as he was arrested and he was in custody the time started to run. Maybe the government can tell us.
MS. ROCAH: Obviously this is a calculation that the Bureau of Prisons will do and I suppose if the defendant has objections to their calculations he can raise it then since sitting here now we don't know what it will be. It's something done by the Bureau of Prisons. But my understanding is he was in custody on the previous conviction and so I am not sure if he would have received credit yet on this sentence but I don't really want to speculate because it's a Bureau of Prison's calculation.
Your Honor, I am sorry, I would hate for there to be any technicalities. I believe the defendant should also be advised that as to his right to appeal, he has to do it within ten days from the entry of judgment.
THE COURT: That is correct.
MS. ROCAH: I know his lawyer indicated he is going to file it today so it's not an issue.
THE COURT: It's correct that such a statement is appropriate to be made and I make it. It has to be within ten days of when judgment is filed by this court. There is that time limitation.
There are so many matters that have been raised, I want to be sure I cover them all. To make it clear, he continues to raise issues about tampering, which seems to be an endless process on his part. I have already ruled with respect to these considerations.
To the extent he is adding or embellishing on those considerations it's my same ruling with respect to it not being a matter to be considered at sentencing and he does have the right to appeal with respect to all my rulings. And to the extent I haven't specifically denied any of his other requests here, I do deny them to the extent I haven't already done it.
Anything else?
MS. ROCAH: No, your Honor, not from the government.
MR. SIEGEL: No, your Honor.
THE COURT: Thank you for your patience.
MS. ROCAH: Thank you, your Honor.
MR. SIEGEL: Thank you, your Honor.
NOTICE OF FILING OF OFFICIAL TRANSCRIPT
Notice is hereby given that an official transcript of a sentence held on 11/8/07 has been filed by the court reporter/transcriber in the above-captioned matter.
Redaction responsibilities apply to the attorneys of record or pro se parties, even if the person requesting the transcript is a judge or a member of the public or media.
The parties have seven (7) calendar days from the date of filing of this NOTICE to file with the court any NOTICE OF INTENT TO REQUEST REDACTION of this transcript. A copy of said NOTICE must also be served on the court reporter. If no such NOTICE is filed, the transcript may be made remotely electronically available to the public without redaction after ninety (90) calendar days.
This process may only be used to redact the following personal data identifiers: Social Security numbers; dates of birth; minors' names; and financial account numbers. See Federal Rule of Civil Procedure 5.2, and Federal Rule of Criminal Procedure 49.1. Parties wishing to request redaction of other information may proceed by motion.
I (we) certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.