United States Attorney Eastern District of New York CLE...2020/05/18 · U.S. Department of Justice...

U.S. Department of Justice

United States Attorney Eastern District of New York

AB:MJB 271 Cadman Plaza East F. #2020R00151 Brooklyn, New York 11201

March 18, 2020 By ECF and E-mail The Honorable Lois Bloom United States Magistrate Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201

Re: United States v. Douglas Ebanks Criminal Docket No. 20-204M

Dear Judge Bloom:

The government respectfully submits this letter concerning the preliminary hearing scheduled for March 18, 2020, in the above case. The government is prepared to proceed but understands that extraordinary circumstances exist, for which circumstances the Court has asked the United States Marshal’s Service not to produce the defendant. The government therefore respectfully submits that the Court should adjourn the preliminary hearing until, at the earliest, April 27, 2020, or until such time as Administrative Order No. 2020-06 is lifted, and should make findings pursuant to Federal Rule of Criminal Procedure 5.1(d) that extraordinary circumstances exist and justice requires the delay.

On March 4, 2020 the defendant was arraigned on a complaint charging him with illegally possessing a firearm and ammunition after having been convicted of a felony. A permanent order of detention was entered and the defendant requested a preliminary hearing, which the Honorable Steven M. Gold scheduled for March 18, 2020 at 11:00 a.m. The government has attempted to obtain an indictment, which, pursuant to Rule 5.1(a)(2) would obviate the need for a preliminary hearing, but as a result of the current extraordinary circumstances caused by the COVID-19 pandemic, the government has not yet been able to secure time with a grand jury with a quorum present. The government notified defense counsel of the likelihood that a hearing would not be obviated by indictment, and the defendant declined to waive the hearing pursuant to Rule 5.1(a)(1). The government therefore requested that the United States Marshal’s Service produce the defendant for the preliminary hearing. The government submits that, absent a waiver, the defendant’s

Case 1:20-mj-00204-RML Document 5 Filed 03/18/20 of 3 PageID #: 9

2

presence is required at such proceeding. See Fed. R. Crim. P. 43(a); Grayton v. Ercole, 691 F.3d 165, 172 (2d Cir. 2012), cert. denied, 571 U.S. 837 (2013) (right to be present at Geraci hearing); Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000) (right to be present at Wade hearing but properly waived that right). However, the government understands that, in light of the COVID-19 pandemic, the Court has directed the Marshal’s Service not to produce the defendant.

The government is prepared to proceed with a preliminary hearing on March 18, 2020. However, if the defendant is not present, and he has not waived the hearing pursuant to Rule 5.1(a)(1) or agreed to an adjournment pursuant to Rule 5.1(d), the government submits that the Court should make findings pursuant to Rule 5.1(d) that justice requires extending the time by which a hearing must be conducted due to extraordinary circumstances brought about by the COVID-19 virus.

Since approximately March 9, 2020, grand jury panels within the Eastern District have experienced diminished attendance due to concerns surrounding the COVID-19 pandemic. As a result, a grand jury replacement panel was ordered for Monday, March 16, 2020. The day before the scheduled empaneling, Sunday, March 15, 2020, Chief Judge Mauskopf cancelled the questioning and empaneling of the prospective replacement grand jurors. Over successive days, the government attempted to present the above-captioned case to the existing grand jury panels, but due to absences caused by the COVID-19 virus, these grand jury panels have not comprised a quorum.

On Monday, March 16, 2020 Chief Judge Mauskopf issued Administrative Order No. 2020-06 noting the President of the United States’ declaration of a national emergency and the actions taken throughout the state in an effort to slow the spread of the disease. Of particular note, the Order excluded time under the Speedy Trial Act, 18 U.S.C. §§ 3161(a)-(c) and (h)(7)(A), finding that “the ends of justice served by taking such action outweigh the interests of the parties and the public in a speedy trial and in the time in which an indictment must be filed.” (Administrative Order No. 2020-06, ¶ 7). Additionally, New York City Mayor Bill de Blasio yesterday issued a statement indicating that all New Yorkers should prepare for a “shelter-in-place” order, which may be issued imminently.

For the foregoing reasons, if the defendant does not waive or consent to the adjournment of the preliminary hearing, the Court should make findings pursuant to Fed. R. Crim. P. 5.1(d) that extraordinary circumstances exist and that justice requires an extension


3

of time until April 27, 2020, or until such time as Administrative Order No. 2020-06 is lifted, to conduct the preliminary hearing.

Respectfully submitted,

RICHARD P. DONOGHUE United States Attorney

By: /s/

Michael J. Bushwack Assistant U.S. Attorney (718) 254-6454

cc: Clerk of Court (LB) (By ECF) Mildred Whalen, Esq. (By e-mail)


March 18, 2020 The Honorable Lois Bloom U.S. District Court Magistrate Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201

Re: U.S.A. v. Juan Plasencia, 20 MJ 205 U.S.A. v. Douglas Ebanks, 20 MJ 204 Your Honor:

I write in response to the Government’s request for adjournments of the date of the preliminary hearings in these matters to April 27, 2020, or a date after Administrative Order 2020-06 is lifted. The defense opposes the time of the adjournment requested as too lengthy and outside of the procedures set forth in Federal Rule of Criminal Procedure (FedRCrimP) 5.1(d).

At a conference yesterday, the Court ruled that she found an extraordinary circumstance

in the existence of the Covid-19 pandemic and that the interests of justice required the protection of the parties involved who would be put at risk if the preliminary hearing was held. Based on those findings, the Court refused to schedule the preliminary hearings. The Court did not set a new date for the hearings, saying it was awaiting guidance on how the right to a preliminary hearing should be interpreted as a result of Administrative Order 2020-06.

Without a defendant’s consent for an extension, FedRCrimP 5.1(d) permits a Magistrate

Judge to extend the time frames set forth in the Rule. Those time frames require the scheduling of preliminary hearings within 14 days for a defendant in custody, and 21 days for a defendant out of custody, see FedRCrimP 5.1(c). As the defense stated at yesterday’s conference, the rules governing preliminary hearings are not set forth in the speedy trial rules, but in FedRCrimP 5.1. As a result, the Court is required to follow Rule 5.1(d) in extending the time frames for a preliminary hearing. As the Rule states “a magistrate judge may extend the time limits in Rule 5.1(c) one or more times.” Should additional extensions become necessary, the government must file additional requests. The Court must then make the necessary findings that extraordinary circumstances and the interests of justice still exist and require an additional extension.

Case 1:20-mj-00204-RML Document 6 Filed 03/18/20 Page 1 of 2 PageID #: 12

As a result, and based on the Court’s findings yesterday that extraordinary circumstances and the interests of justice required an extension of the timeframes, that extension should only be granted until April 1, 2020, when the next 14 day period will expire.


Mildred M. Whalen Federal Defenders of New York, Inc. Attorneys for Mr. Plasencia and Mr. Ebanks (718) 330-1290

cc: Assistant U.S. Attorney Robert Pollack, Esq. (via email and ECF) Assistant U.S. Attorney Matthew Bushwack, Esq. (via email and ECF

ECF




WK:MJB 271 Cadman Plaza East F. #2020R00151 Brooklyn, New York 11201

April 30, 2020 By ECF and E-mail The Honorable Cheryl L. Pollak Chief United States Magistrate Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201


Dear Chief Judge Pollak:

The government respectfully submits this letter concerning a preliminary hearing previously scheduled for March 18, 2020 in the above case. On March 18, 2020 the Honorable Lois Bloom adjourned the hearing due to the extraordinary circumstances brought about by the COVID-19 pandemic. The government respectfully requests that the Court adjourn the preliminary hearing until June 15, 2020, or any date specified pursuant to a future Administrative Order. The government further requests the that the Court make findings pursuant to Federal Rule of Criminal Procedure 5.1(d) that extraordinary circumstances exist and justice requires the delay.

I. Background

On March 4, 2020, the defendant was arraigned on a complaint charging him with illegally possessing a firearm and ammunition after having been convicted of a felony. (ECF Dkt. No. 1). A permanent order of detention was entered and the defendant requested a preliminary hearing, which the Honorable Steven M. Gold scheduled for March 18, 2020. The government was prepared to seek an indictment, which, pursuant to Rule 5.1(a)(2) would have obviated the need for a preliminary hearing. As a result of the current extraordinary circumstances caused by the COVID-19 pandemic, however, no regular grand jury in this district has had a quorum since March 13, 2020. See In re: Coronavirus/COVID-19 Administrative Order 2020-11, p.1.


2

On March 18, 2020 the government filed a letter advising the Court that the government was prepared to proceed with the preliminary hearing, but requested instead that the Court make findings pursuant to Rule 5.1(d) that justice required extending the time by which a hearing must be conducted due to extraordinary circumstances brought about by the COVID-19 virus. (ECF Dkt. No. 5). On March 18, 2020, the Honorable Lois Bloom issued an electronic order that “[i]n light of the national emergency and the Court's Administrative Order No. 2020-06, the Government’s request to adjourn the preliminary hearing until April 27, 2020 is granted. The Court finds extraordinary circumstances exist and justice requires the delay. Fed. R. Crim. P. 5.1(d).”1

On March 18, 2020, Chief Judge Mauskopf issued Administrative Order 2020-11 which extended the time within which a preliminary hearing must be held to “60 days after the initial appearance” noting that “extraordinary circumstances exist and justice requires the delay.” (Administrative Order No. 2020-11, p. 2). Here, sixty days after Mr. Ebanks’ initial appearance is Sunday, May 3, 2020, thereby requiring the preliminary hearing to occur by Monday, May 4, 2020.

On April 21, 2020, citing the ongoing exigent circumstances created by the COVID-19 pandemic, Chief Judge Mauskopf issued Administrative Order 2020-15 which excluded the time period from April 27, 2020 to June 15, 2020, under the Speedy Trial Act, for “all trials and other conferences and proceedings in criminal cases,” including the 30-day time period for filing an indictment under 18 U.S.C. § 3161(b). (Administrative Order No. 2020-15, ¶ 6). With respect to preliminary hearings, Administrative Order 2020-15 specified that:

Due to the ongoing exigent circumstances created by the COVID-19 pandemic as outlined herein, in all criminal matters in which a magistrate judge must conduct a preliminary hearing pursuant to Federal Rule of Criminal Procedure 5.1 on or between April 27, 2020 and June 15, 2020, the time for such hearing set forth in Rule 5.l(c) is further extended to no later than 60 days after the initial appearance of the defendant.

(Administrative Order No. 2020-15, ¶ 7)

1 Administrative Order No. 2020-06, cited by Judge Bloom, was issued on March 16, 2020 by Chief Judge Roslynn R. Mauskopf which excluded the time between March 16, 2020 and April 27, 2020, under the Speedy Trial Act, in all criminal matters, finding that “the ends of justice served by taking such action outweigh the interests of the parties and the public in a speedy trial and in the time in which an indictment must be filed.” (Administrative Order No. 2020-06, ¶ 7).


3

Notably, Administrative Order No. 2020-15 also directed that “[n]o in-person bench trials or evidentiary hearings may be scheduled without consultation with the Chief Judge.” (Administrative Order No. 2020-15, ¶ 4).

II. Issue and Request

Here, if ¶ 7 of Administrative Order No. 2020-15 is followed in the absence of another order in this case, an evidentiary hearing, i.e., the preliminary hearing in this case, would be required to be held on May 4, 2020, both well in advance of the June 15, 2020 date specified in ¶ 6 of Administrative Order No. 2020-15 and also during the pendency of the ongoing exigent circumstances created by the COVID-19 pandemic as outlined in Administrative Order No. 2020-15. The government has asked counsel for Mr. Ebanks whether he would consent to the adjournment request or waive the preliminary hearing, but the government has not, as of this time, received an answer.

Accordingly, for the foregoing reasons, the government respectfully requests that the Court make findings pursuant to Fed. R. Crim. P. 5.1(d) that extraordinary circumstances exist and that justice requires an extension of time until June 15, 2020, or any date specified by a future Administrative Order, to conduct the preliminary hearing in this case.



By: /s/


cc: Clerk of Court (CLP) (By ECF and e-mail) Mildred Whalen, Esq. (By e-mail)


1

May 1, 2020 The Honorable Cheryl L. Pollak Chief U.S. District Court Magistrate Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201

Re: U.S.A. v. Douglas Ebanks, 20 MJ 204 Your Honor:

Please accept this letter as a motion to reconsider the decision to grant the government’s motion to continue, filed at 5:12 p.m. last evening. I write to oppose the Government’s request to adjourn the preliminary hearing in Mr. Ebanks’ case to June 15, 2020 or any date set in any future administrative order issued as a result of the COVID-19 pandemic.

Instead, the Court should dismiss the complaint pursuant to Federal Rule of Criminal

Procedure (Fed.R.Crim.P.) 48(b)(1), which permits the Court to dismiss a complaint when there has been unnecessary delay in presenting a charge to the grand jury. There has been such unnecessary delay in this case.

1. Background.

Mr. Ebanks was arraigned on a federal complaint on March 4, 2020. This was not the first time Mr. Ebanks was in a court facing these charges, however. Mr. Ebanks had been arrested on the charges underlying the complaint on December 26, 2019. Please see the complaint in this case, ECF No. 1.

The charges underlying the federal complaint are being prosecuted in New York State

Supreme Court, Kings County.1 The case in New York was indicted on January 14, 2020. Mr.

1 Upon information and belief, when a case has been indicted in New York State Supreme Court and is then transferred to federal court, the New York State indictment is not dismissed unless and until the case is indicted in federal court. This permits New York State to retain jurisdiction and continue its prosecution should the federal government decide not to continue the prosecution in federal court. Upon further information and belief, Mr. Ebanks was brought into federal custody on a writ, with New York State retaining primary custody over his person, even though he is physically in federal BOP custody. If the federal case is indicted, the New York State indictment will be dismissed, and the federal government will take primary custody of Mr. Ebanks. If the federal case is not indicted, prosecution will continue in New York State Supreme Court, Kings County.


2

Ebanks was and remains detained on that case on $100,000 bail. He has pled not guilty to those charges and was awaiting trial. He is next scheduled to appear in Kings County Supreme Court on May 12, 2020. Please see exhibit A, Appearances from the New York State Unified Court System.

Mr. Ebanks demanded a preliminary hearing at his arraignment in federal court on March

4, 2020, and the hearing was scheduled for March 18, 2020. On March 17, 2020, the government informed the magistrate clerks that they were prepared to proceed to a preliminary hearing the following day. While not reflected on the docket sheet, but reflected in the defense submission of March 18, 2020, ECF No. 6, and Magistrate Judge Bloom’s order of March 18, 2020, Magistrate Judge Bloom held an emergency status conference on March 17, 2020 and advised defense counsel she would not hold a preliminary hearing on March 18, 2020. Magistrate Bloom made the finding that Fed.R.Crim.P. 5.1(d) permitted an adjournment of the hearing if extraordinary circumstances existed and justice required the delay. Magistrate Judge Bloom found such extraordinary circumstances and justice requiring the delay in the circumstances of the COVID-19 pandemic. The following day Magistrate Judge Bloom adjourned the preliminary hearing, by order and over defense objection, to April 27, 2020. As the defense noted in our submission of March 18, 2020, this adjournment was outside of the rules set forth in Fed.R.Crim.P. 5.1(c), which only permitted an adjournment of the preliminary hearing for a defendant in custody for 14 days.

On March 18, 2020, Chief Judge Mauskopf issued Administrative Order 2020-11, which

extended the time within which a preliminary hearing must be held to 60 days after the initial appearance. On April 21, 2020, Chief Judge Mauskopf issued Administrative Order 2020-15, which stated that for all criminal matters in which a magistrate judge must conduct a preliminary hearing between April 27, 2020 and June 15, 2020, the time for such a preliminary hearing is extended to no later than 60 days after the initial appearance of the defendant. As the government correctly notes, this would require a preliminary hearing in Mr. Ebanks’ case on May 4, 2020.

2. Issue and Request.

The Court has now granted the government another extraordinary extension of the time in

which conduct a preliminary hearing. The Court has granted an extension to June 25, 2020 or 10 days after the expiration of any future administrative order.2 As will be detailed below, the government’s request for an extension was the result of an unnecessary delay by the government

2 While the government has asked defense counsel if Mr. Ebanks would waive a preliminary hearing in this matter, and advises the Court that it has not yet heard from defense counsel on this request, defense counsel has no ability to respond to the government’s request for the simple reason that the MDC is on lockdown. Inmates are restricted to their cells 24 hours a day Tuesday, Thursday, Saturday, and Sunday. They are released from their cells Monday, Wednesday, and Friday for one hour. During this one hour, inmates are expected to shower, make all telephone calls to their families, and email. The government asked defense counsel to waive the preliminary hearing on Wednesday, April 29, 2020, and defense counsel emailed Mr. Ebanks. Unfortunately, defense counsel must have missed the one-hour window Mr. Ebanks would have had to respond to defense counsel email, or he was otherwise engaged on the telephone or taking a shower.


3

in conducting a preliminary hearing or presenting the case to the grand jury before March 18, 2020. The Court should reconsider its decision, deny the government’s request, and dismiss the federal complaint.

a. Fed.R.Crim.P. 48. Dismissal.

Fed.R.Crim.P. 48(b)(1) permits dismissal of a complaint by the Court if unnecessary delay

occurs in presenting a charge to the grand jury. This provision not only allows the Court to dismiss on constitutional grounds, but also permits the Court to dismiss where the delay is not of a constitutional magnitude. This rule operates independently of the Speedy Trial Act and is broader in compass. United States v. Goodson, 204 F.3d 508, 513 (4th Cir. 2000); United States v. Balochi, 527 F.2d 562, 563-64 (4th Cir. 1976)(per curiam).

The government claims that the coronavirus pandemic prevented them from presenting this

case to the grand jury and continues to prevent them from holding a preliminary hearing. As detailed below, while the coronavirus pandemic may prevent them from holding a preliminary hearing, the government had ample opportunity to indict the case prior to the pandemic closing the court. The complaint should be dismissed for their unnecessary delay in presenting this charge to the grand jury.

b. The government could have obtained an indictment prior to bringing Mr.

Ebanks to federal court.

As detailed above, Mr. Ebanks was arrested on December 26, 2019. He was held on bail in state custody and was indicted on January 14, 2020. He made three subsequent court appearances in state court and was pending trial. While it is unclear when the government made their decision to prosecute the case federally, it clearly did so prior to March 4, 2020. The federal government was not required to have Mr. Ebanks in custody when they obtained their indictment and could have obtained the indictment prior to bringing him into federal custody. Their decision not to indict the case prior to bringing Mr. Ebanks into federal custody should not be now used to further detain him in federal custody. Their failure to indict the case before bringing Mr. Ebanks to federal court was an unnecessary delay and permits the Court to dismiss the complaint pursuant to Fed.R.Crim.P. 48(b)(1).

c. The government could have indicted Mr. Ebanks after he was arraigned on the federal complaint.

Furthermore, after Mr. Ebanks was arraigned on the federal complaint the government could

have moved to speedily indict the case. While the government claims that they have been unable to achieve a quorum in the grand jury since March 13, 2020, they had ample opportunity between March 5 and March 13, 2020, seven business days, to present this case to a grand jury.

This is especially true when, based upon the government’s review that the case should be

transferred to federal court, the government would have already met with and spoken to the officers involved in the arrest to determine if the case should be brought in federal court. This is not a case where the government had to do an investigation immediately following an arrest. As


4

noted above, the government had ample opportunity to investigate the case and prepare witnesses for the grand jury before Mr. Ebanks was brought to federal court. Given this unnecessary delay in presenting the charge to the grand jury, the federal complaint should be dismissed.

d. The government’s claim of an inability to achieve a quorum is undermined by their ability to obtain superseding indictments in a high-profile case.

Finally, while no ‘regular’ grand juries could apparently achieve a quorum after March 13,

2020, the government was able to convene a grand jury in high profile case and have them vote superseding indictments on March 18, 2020, the same day they were arguing they could not proceed in the grand jury on Mr. Ebanks’ case. Furthermore, these superseding indictments were obtained in a case with no demonstrated urgency for the use of grand jury resources. Please see Docket No.15-CR-252 (PKC), ECF Nos. 1319 and 1337, where superseding indictments were filed on March 18, 2020, adding four new defendants to the FIFA soccer federation fraud, bribery, and money laundering case.

While fraud, bribery and money laundering are serious charges, there appears to have been no special urgency for the government to convene that grand jury as opposed to focusing their efforts and resources on Mr. Ebanks and other defendants in custody. Upon information, belief, and a review of the FIFA docket, the two individual (as opposed to corporate) defendants arraigned on this indictment were not in custody prior to the indictment, were not arrested after the indictment was obtained, appeared at arraignment by summons, and were granted bond at a telephonic arraignment.

The fact that the government could achieve a quorum in a grand jury for rich and high

profile defendants, on the same day that they were arguing they could not proceed in Mr. Ebanks’ case, was a gross misuse of the grand jury system. For the government to then demand and be granted their request that Mr. Ebanks, who is charged with being a felon in possession of a gun in his home, be held in custody for months beyond the statutory time frames, while these other defendants, indicted for charges of fraud, bribery, and money laundering, were not even arrested much less detained, makes it clear there is one system of justice for the rich and one for the poor. This misuse of grand jury resources contributed to an unnecessary delay in Mr. Ebanks case, and the federal complaint should be dismissed as a result.

e. Conclusion.

The government chose how to proceed in this case. They chose to disrupt the state prosecution and delay Mr. Ebanks’ ability to defend himself by bringing a federal case. They then chose not to indict the federal case prior to bringing Mr. Ebanks into federal custody. They then chose not to present the case to the federal grand jury between March 5 and March 13, 2020. Finally, they chose to focus grand jury resources on a high-profile case of rich and famous defendants they had no intention of arresting or detaining, rather than focus them on Mr. Ebanks, a poor man in custody. As is clear, the federal government chose to unnecessarily delay presenting this case to the grand jury, and as a result the complaint should be dismissed. We ask the Court to reconsider the government’s request to continue, we ask the Court to deny that


5

request upon reconsideration, and we ask the Court to dismiss the federal complaint pursuant to Fed.R.Crim.P. 48(b)(1).


Mildred M. Whalen Federal Defenders of New York, Inc. Attorneys for Mr. Ebanks (718) 330-1290

cc: Assistant U.S. Attorney Matthew Bushwack, Esq. (via email and ECF

ECF


4/30/2020 Case Details - Appearances

https://iapps.courts.state.ny.us/webcrim_attorney/Detail?which=appearance&docketNumber=VkXOk4NUcxT3DcnwgCj_PLUS_5w==&countyId=Mx3N… 1/1

N e w Yo r k S t a t e U n i f i e d C o u r t S y s t e m

We b C r i m i n a l

Court: Kings Supreme Court - Criminal TermCase #: 07687-2019Defendant: Ebanks, Douglas

Case Details - AppearancesCASE INFORMATION

Date/Time

Judge/Part

CalendarSection

Arraignment/Hearing Type

CourtReporter

Outcome/Release Status

05/12/2020GP28

TRIALS AM No Type

03/10/2020 Hudson, SGP28

TRIALS AM No Type Panzella, K AdjournedSame BailConditions

02/14/2020 Hudson, SGP28

TRIALS AM No Type Na, AdjournedSame BailConditions

01/30/2020 Hudson, SGP28

TRIALS AM No Type Schiano, A AdjournedSame BailConditions

01/23/2020 Hudson, SGP28

ARRAIGNMENTS Regular Gaeta-milella, D Pled Not GuiltyBond $100,000Cash $50,000 (NotPosted)

01/14/2020GRAND JURY

MISCELLANEOUS No Type True BillBail Continued

Case 1:20-mj-00204-RML Document 8-1 Filed 05/01/20 Page 1 of 1 PageID #: 22

http://www.nycourts.gov/

https://iapps.courts.state.ny.us/webcrim_attorney/AttorneyWelcome



WK:MJB 271 Cadman Plaza East F. #2020R00151 Brooklyn, New York 11201

May 6, 2020 By ECF and E-mail The Honorable Cheryl L. Pollak Chief United States Magistrate Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201


Dear Chief Judge Pollak,

The government respectfully submits this letter in response to the defendant’s motion to reconsider this Court’s April 30, 2020 Order granting the government’s request to adjourn the preliminary hearing in the above-captioned case due to the extraordinary circumstances brought about by the COVID-19 pandemic. For the reasons set forth below, the defendant’s motion should be denied.

I. Background

On March 4, 2020, the defendant was arraigned on a complaint charging him with illegally possessing a firearm and ammunition after having been convicted of a felony. (ECF Dkt. No. 1). A permanent order of detention was entered and the defendant requested a preliminary hearing, which the Honorable Steven M. Gold scheduled for March 18, 2020. As described in detail below, the government took numerous steps to secure an indictment, which, pursuant to Federal Rule of Criminal Procedure 5.1(a)(2), would have obviated the need for a preliminary hearing. As a result of the current extraordinary circumstances caused by the COVID-19 pandemic, however, the government was unable to present the case to a grand jury with a quorum present.

On March 18, 2020 the government filed a letter advising the Honorable Lois Bloom that the government was prepared to proceed with the preliminary hearing, but requested instead that the court make findings pursuant to Rule 5.1(d) that justice required extending the time by which a hearing must be conducted due to extraordinary circumstances


2

brought about by the COVID-19 virus. (ECF Dkt. No. 5). On March 18, 2020, Judge Bloom issued an electronic order that “[i]n light of the national emergency and the Court’s Administrative Order No. 2020-06, the Government’s request to adjourn the preliminary hearing until April 27, 2020 is granted. The Court finds extraordinary circumstances exist and justice requires the delay. Fed. R. Crim. P. 5.1(d).”1

On March 18, 2020, Chief Judge Mauskopf issued Administrative Order 2020-11 which extended the time within which a preliminary hearing must be held to “60 days after the initial appearance” noting that “extraordinary circumstances exist and justice requires the delay.” (Administrative Order No. 2020-11, p. 2). Here, 60 days after Mr. Ebanks’ initial appearance was Sunday, May 3, 2020, thereby requiring the preliminary hearing to occur by Monday, May 4, 2020. (Fed. R. Crim P. 45(a)(1)(C)).

On April 21, 2020, citing the ongoing exigent circumstances created by the COVID-19 pandemic, Chief Judge Mauskopf issued Administrative Order 2020-15 which excluded the time period from April 27, 2020 to June 15, 2020, under the Speedy Trial Act, for “all trials and other conferences and proceedings in criminal cases,” including the 30-day time period for filing an indictment under Title 18, United States Code, Section 3161(b). (Administrative Order No. 2020-15, ¶ 6). With respect to preliminary hearings, Administrative Order 2020-15 specified that:

Due to the ongoing exigent circumstances created by the COVID-19 pandemic as outlined herein, in all criminal matters in which a magistrate judge must conduct a preliminary hearing pursuant to Federal Rule of Criminal Procedure 5.1 on or between April 27, 2020 and June 15, 2020, the time for such hearing set forth in Rule 5.l(c) is further extended to no later than 60 days after the initial appearance of the defendant.

(Administrative Order No. 2020-15, ¶ 7). Notably, Administrative Order No. 2020-15 also directed that “[n]o in-person bench trials or evidentiary hearings may be scheduled without consultation with the Chief Judge.” (Administrative Order No. 2020-15, ¶ 4).

Due to the extraordinary circumstances brought about by the COVID-19 pandemic and the ongoing unavailability of a quorum of grand jurors, on April 30, 2020, the government requested an adjournment until June 15, 2020, or any date specified by a subsequent Administrative Order, to conduct the preliminary hearing in this case. (ECF Dkt. No. 7). On April 30, 2020, this Court granted the government’s request for an extension of 1 Administrative Order No. 2020-06, cited by Judge Bloom, was issued on March 16, 2020 by Chief Judge Roslynn R. Mauskopf which excluded the time between March 16, 2020 and April 27, 2020, under the Speedy Trial Act, in all criminal matters, finding that “the ends of justice served by taking such action outweigh the interests of the parties and the public in a speedy trial and in the time in which an indictment must be filed.” (Administrative Order No. 2020-06, ¶ 7).


3

time to conduct the preliminary hearing until 10 days after the expiration of Administrative Order 2020-15, scheduled to expire on June 15, 2020, or to such time thereafter should the Administrative Order be extended.

On May 1, 2020, the defendant filed a motion (“Def. Mot.”) asking the Court to reconsider its Order granting the government an extension of time to conduct a preliminary hearing. The defendant also requested that the criminal complaint be dismissed. (ECF Dkt. No. 8). For the reasons set forth herein and in the government’s April 30, 2020 letter, the defendant’s motion should be denied in its entirety.

II. The Government’s Extensive Efforts to Secure an Indictment

Starting on approximately March 9, 2020, grand jury panels within the Eastern District of New York experienced diminished attendance due to concerns surrounding the COVID-19 pandemic. In fact, no regular grand jury in this district has had a quorum since March 13, 2020. See In re: Coronavirus/COVID-19, Administrative Order 2020-11, p.1.

On Monday, March 16, 2020, two days in advance of the preliminary hearing scheduled in this case, the government attempted to present an indictment in the matter to the regular Monday grand jury, but a quorum was not present. The next day, Tuesday, March 17, 2020, in an attempt to present the case to a grand jury in which a quorum was present, the undersigned AUSA and witnesses convened, 50 miles away, in Central Islip, New York, to present the case to the grand jury sitting in the courthouse there. Unfortunately, a quorum was not present. On Wednesday, March 18, 2020, the AUSA and witnesses again convened at the United States District Courthouse in Brooklyn to present the case to the regular grand jury, but again, a quorum was not present.

The defendant incorrectly asserts that this case could have been presented to the special grand jury that considered superseding indictments in another case on Wednesday, March 18, 2020. (Def. Mot., p. 4). As this Court is aware, a special grand jury has been empaneled by order of the Chief Judge pursuant to 18 U.S.C. § 3331, and the special grand jury does not hear cases where the sole charge under investigation is 18 U.S.C. § 922(g). Here, the only charge under investigation, and the only charge the defendant faces, is 18 U.S.C. § 922(g). Therefore, the case was not presented to the special grand jury. Once again, the grand jury that should have been available to consider an indictment in this defendant’s investigation on March 18, 2020 – the regular Wednesday grand jury – did not have a quorum that day. The fact that the special grand jury did not consider an indictment in this case had nothing to do, as the defendant mistakenly asserts, with whether “rich and high profile defendants” were involved. (Def. Mot., p. 5).

Essentially, the defendant faults the government for not predicting the unprecedented impact of the COVID-19 pandemic on the Eastern District of New York. As noted above, however, the government went to great lengths, on three consecutive days and in two separate locations, to secure an indictment within the 14-day requirement of Fed. R. Crim. P. 5.1(c). Its lack of success in presenting the case to a grand jury was due only to the extraordinary circumstances brought about by the COVID-19 pandemic.


4

The defendant’s remaining contentions regarding how the government could have proceeded in the case (i.e., securing an indictment before charging the defendant via complaint or presenting the case to a grand jury in less time than is required) are without merit and supporting authority. Moreover, Fed. R. Crim. P. 5.1 clearly specifies that the government has 14 days from the defendant’s initial appearance to present the case to a grand jury. Although the government was under no obligation to seek an indictment prior to the 14th day from the initial appearance, the government took extensive steps to present an indictment to a grand jury authorized to consider charges in this case: first, on day 12, in Brooklyn; then, on day 13, in Central Islip; and, yet again, on day 14, in Brooklyn. The government was thwarted, despite its extensive efforts, due to the extraordinary circumstances presented by the COVID-19 pandemic which caused the absence of grand jury quorums.

III. This Court’s April 30, 2020 Order is Consistent with Other Courts’ Orders

Other courts have similarly found that justice required the continuance of a preliminary hearing due to the extraordinary circumstances brought about by the COVID-19 pandemic. In United States v. Carrillo-Villa, 2020 WL 1644773, April 2, 2020 (S.D.N.Y.), Chief United States Magistrate Judge Gabriel W. Gorenstein of the Southern District of New York found that “‘extraordinary circumstances exist and just requires the delay’ in the deadline for holding a preliminary hearing.” U.S. v. Carillo-Villa, at *3. See also United States v. Munoz, 2020 WL 1433400, March 24, 2020 (S.D. Cal.) (in extending the preliminary hearing deadline, the court found that “extraordinary circumstances exist and justice requires” the preliminary hearing be continued beyond the 14-day deadline of Fed. R. Crim. P. 5.1).

IV. No Basis Exists to Dismiss the Complaint

For the first time in his motion for reconsideration, the defendant contends, pursuant to Fed. R. Crim. P. 48(b)(1), that the complaint should be dismissed because the government “chose to unnecessarily delay” presenting the case to a grand jury. (Def. Mot. p. 4). As described in detail above, the defendant’s contention is counterfactual. Both Judge Bloom’s March 18, 2020 Order and this Court’s April 30, 2020 Order were appropriate and lawful given the extraordinary circumstances brought about by the COVID-19 pandemic, and the defendant’s request to dismiss the complaint should be denied.


5

V. Conclusion

For the foregoing reasons, the government respectfully requests that this Court adhere to its April 30, 2020 Order granting an extension of time to conduct a preliminary hearing, and deny the defendant’s motion for reconsideration and dismissal.



By: /s/


cc: Clerk of Court (CLP) (by ECF and E-mail) Mildred Whalen, Esq. (Attorney for Defendant) (by E-mail)


1

May 6, 2020 The Honorable Cheryl L. Pollak Chief U.S. District Court Magistrate Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201

Re: U.S.A. v. Douglas Ebanks, 20 MJ 204 Your Honor:

Please accept this letter as a reply to the government’s response to the defense motion to reconsider the decision to grant the government’s motion to continue. The government has not demonstrated that their efforts to obtain an indictment were extensive enough to overcome a finding that unnecessary delay has taken place in the indictment of the federal complaint in Mr. Ebanks’ case. We continue to urge the Court to dismiss the federal complaint pursuant to Federal Rule of Criminal Procedure (Fed.R.Crim.P.) 48(b)(1).

The government’s response addresses the difficulties they had in presenting the case to a

grand jury in the Eastern District of New York, beginning March 16, 2020, two days in advance of the scheduled preliminary hearing. They note that grand juries began experiencing diminished attendance on about March 9, 2020, but fail to address what efforts they took, if any, to bring Mr. Ebanks’ case to a grand jury once diminished attendance became apparent.1 Furthermore, if it became apparent grand jury attendance was diminishing on March 9, the government had 4 days, March 10 through March 13, to present Mr. Ebanks’ case to the grand jury. Instead, despite evidence of diminishing grand jury attendance, the government waited until March 16 before even attempting to get into the grand jury.

With respect to the defense comments on the special grand jury presentation on March

18, 2020, those comments were to note that the government could marshal its efforts and resources in making sure there was a quorum for a special grand jury in a high profile case where no one was expected to go into custody, but apparently would not do the same to ensure there was a quorum for a regular grand jury for Mr. Ebanks, who was in custody.

1 The government also ignores that fact that grand jury attendance was not a problem on March 5 and 6, which, as pointed out in our letter of May 1, 2020, were feasible dates for the government to go into the grand jury. As we pointed out, given the investigation the government must have undertaken in their decision to bring a federal prosecution of Mr. Ebanks’ case, the case would have essentially been grand jury ready as of March 4, 2020.


2

The government is incorrect in stating that the defense is faulting the government for not

predicting the unprecedented impact of the COVID-19 pandemic. Instead, the defense is faulting the government for not anticipating difficulties in achieving a grand jury quorum beginning March 9, and unnecessarily waiting until the following week to even attempt to present Mr. Ebanks’ case to the grand jury. Governor Cuomo declared a state of emergency in New York State on March 7, 20202; on March 8, 2020 both Governor Cuomo and Mayor DeBlasio issued new guidelines on the use of public transportation and warned individuals to stay out of crowded buses, trains, and subway cars3. By March 9, 2020, New York State and New York City had sent the message that people should stay away from public transportation, and the fact that there were diminishing numbers of grand jurors should have come as no surprise to the government.

The government’s reliance on the cases cited in their response is also misplaced. In those cases, defendants were arrested either after or one day before there were no longer functioning grand juries in the districts. See United States v. Carrillo-Villa 2020 WL 1644773, April 2, 2020 (S.D.N.Y.)(defendant arrested March 19, 2020, with an initial appearance on March 20, 2020--order suspending jury trials and excluding speedy trial time in the S.D.N.Y. issued March 13, 2020, 20 MISC 00154, although not cited in decision); United States v. Munoz, 2020 WL 1433400, March 18, 2020 (S.D.Ca)(defendant arrested March 14, 2020, arraigned March 16, 2020, order of the Chief Judge suspending jury trials and other court proceedings and noting a lack of quorum of grand jurors issued March 17, 2020; court incorporating this order as the basis for cancelling the preliminary hearing and excluding time under the Speedy Trial Act from March 17, 2020 through April 24, 2020). Thus, the government in the cases cited had no ability to proceed in the grand jury at or after the time of the defendants’ initial arraignments. That is not true of the government in Mr. Ebanks’ case.

The government expects the Court to place the burden of their unnecessary delay on Mr. Ebanks, who has now been in custody on a hearsay complaint for more than 60 days. This is extraordinary because as noted in our letter of May 1, 2020, the government chose how to proceed in this case. The government chose not to indict the case prior to Mr. Ebanks’ appearance in federal court. The government then chose to delay the indictment of Mr. Ebanks’ case during the week of March 9, 2020, the weekend before which the governor declared a state of emergency and state and city authorities were advising individuals to travel carefully on public transportation. The government chose to wait until March 16, 2020 to try to present the case to a federal grand jury and were unable to do so. Mr. Ebanks should not be held responsible for the government’s unnecessary delay in going into the grand jury, and the federal complaint against him should be dismissed.


Mildred M. Whalen Federal Defenders of New York, Inc. Attorneys for Mr. Ebanks

2 https://www.nytimes.com/2020/03/07/nyregion/coronavirus-new-york-queens.html 3 https://www.nbcnewyork.com/news/local/nyc-issues-new-commuter-guidelines-to-combat-coronavirus-spread/2317584/


3

(718) 330-1290 cc: Assistant U.S. Attorney Matthew Bushwack, Esq. (via email and ECF

ECF


UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA * Case No. 20-MJ-00204(RML)** Brooklyn, New York* May 8, 2020

v. **

DOUGLAS EBANKS, **

Defendant. **

* * * * * * * * * * * * * * * *

TRANSCRIPT OF CRIMINAL CAUSE FOR TELEPHONE CONFERENCEBEFORE THE HONORABLE CHERYL L. POLLAK

UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

For the Government: MICHAEL BUSHWACK, ESQ.Asst. United States AttorneyUnited States Attorney’s Office271 Cadman PlazaBrooklyn, NY 11201

For the Defendant: MILDRED WHELAN, ESQ.Federal Defenders of New York, Inc.One Pierrepont Plaza, 16th fl.Brooklyn, NY 11201

Proceedings recorded by electronic sound recording,transcript produced by transcription service.

Fiore Reporting and Transcription Service, Inc.

4 Research Drive, Suite 402

Shelton, Connecticut 06484 (203)929-9992

2

(Proceedings commenced at 9:06 a.m.)1

THE CLERK: This is the matter of United States v.2

Ebanks, case no. 20-0204, criminal cause for telephone3

conference. The time now is 9:06 a.m. on May 8th, 2020.4

Counsel, please state your appearances for the5

record. 6

MR. BUSHWACK: For the United States Michael7

Bushwack. Good morning, everyone. 8

THE COURT: Good morning.9

MS. WHELAN: For the Federal Defenders of New York10

and Mr. Ebanks this is Mildred Whelan. Good morning,11

everybody. 12


And do we have Mr. Ebanks on the phone as well? 14

THE DEFENDANT: Yes. Good morning. 15


So Mr. Ebanks, if at any point you can't hear17

something that's being said or you don't understand something18

that's being said, please interrupt and we'll try to clarify19

it, okay? 20

THE DEFENDANT: All right. 21

THE COURT: All right. And Ms. Whelan, we are22

conducting this proceeding this morning via telephone23

conference. Mr. Ebanks is appearing by telephone.24

Are you willing to waive his formal appearance by25

Fiore Transcription Service, Inc. 203-929-9992

3

video conference, given the difficulties we've been having1

setting things up, and agree to allow him to appear in this2

manner this morning? 3

MS. WHELAN: Yes, Your Honor. And I confirmed that4

Mr. Ebanks had no objection to this procedure on Wednesday5

afternoon, Wednesday, May 6th. 6

THE COURT: Okay. 7

And Mr. Ebanks, do you agree to proceed by8

telephone? I wish we were in court and we could do this face9

to face but, unfortunately, we cannot. So do you agree to10

appear this morning by telephone? 11

THE DEFENDANT: Yes, ma'am.12

THE COURT: All right. Thank you very much.13

THE DEFENDANT: All right. 14

THE COURT: Okay. So I have before me a motion for15

reconsideration of an order that I issued on May 1st further16

extending the government's time to conduct a preliminary17

hearing under Rule 5.1(d). 18

Ms. Whelan, I guess it's your application for19

reconsideration so if you would like to start, maybe we20

should begin with you. 21

MS. WHELAN: Thank you, Your Honor. 22

Your Honor, I'm asking for reconsideration because23

of the fact that Mr. Ebanks is in federal custody on a24

federal complaint.25


4

This complaint is a hearsay complaint. It has not1

been tested either through preliminary hearing or through the2

federal grand jury. And for those reasons I think it's wrong3

to continue to keep Mr. Ebanks in place beyond the time line4

the forth in Federal Rule of Criminal Procedure 5.1.5

When Judge Bloom initially found an extraordinary6

circumstance and the interest of justice required the delay,7

we were at the beginning of the court closings. We weren't8

sure how long things were going to proceed.9

While I accepted that the court had found10

extraordinary circumstances and the interests of justice11

requiring the delay, I opposed the delay that was proposed12

because it was beyond the 14-day delay set forth in 5.1.13

The court denied my application, overruled my14

objections and then Judge Mauskopf issued the administrative15

order further adding preliminary hearings, because I don't16

believe they're covered by the speedy trial rule. There's a17

separate rule of criminal procedure covering preliminary18

hearings, and granted an adjournment until the 27th.19

The court -- the government came in on the 30th and20

has asked for an extension of that time frame but, Your21

Honor, I just think that at this point there has been an22

unnecessary delay in bringing this case to the grand jury. 23

In the government's response they said that while24

they tried on March 16th, 17th and 18th I think in my reply I25


5

pointed out that the writing was on the wall the week before. 1

And the government's made no showing of any effort that they2

took to try to get Mr. Ebanks' case into the grand jury the3

week of March 9th.4

Additionally, after they had made their claim of5

good cause and Judge Bloom had accepted it, it became clear6

that the government had been able to focus their resources in7

other more high profile cases. 8

And I'm not arguing that the special grand jury9

should have heard Mr. Ebanks' case, but I think it's pretty10

extraordinary that they can muster a quorum for a very high11

profile case where no one was going into custody and no one12

was expected to remain in custody, and yet they couldn't13

focus the same efforts and resources on Mr. Ebanks.14

I think that there has been a demonstration of15

unnecessary delay in this case and I also find that in effect16

this is pointless in keeping him in custody. 17

I mean, that's not a ground, but in terms of the18

court weighing the equities there is a pending indictment in19

New York State.20

If the court can look at Exhibit A to my May 1st21

filing, objecting or asking for reconsideration, Mr. Ebanks'22

case was actually called on March 10th, 2020 in Kings County. 23

And Kings County did not dismiss the case because there was24

no federal indictment at that point.25


6

So the Kings County indictment is in place. The1

bail that's set in that case is $100,000 over $50,000. I have2

information that Mr. Ebanks is being held on a New York State3

parole hold. 4

So this isn't a case where the court has to choose5

between dismissing a complaint and letting someone back into6

-- you know, back into society who is accused of serious7

crimes.8

Instead, all the court is being asked to do is9

dismiss the hearsay complaint in federal court, send Mr.10

Ebanks back to state court. 11

If the state court continues their prosecution12

where they clearly are because they didn't dismiss the case13

as soon as Mr. Ebanks went into federal custody, that14

prosecution on essentially the same charges can go forward.15

If after the pandemic is over if the government16

decides that they have some interest in this prosecution,17

some special interest, they can indict the case when they18

have quorums again and they can bring Mr. Ebanks back into19

state custody, or into federal custody.20

But at this point, without an explanation, without21

further information as to why they didn't go forward on March22

5th, March 6th, or any of the dates of the week of March 9th,23

especially after New York State declared a state of emergency24

on the -- Saturday the 7th, and then on Sunday the 8th the25


7

governor and the mayor came out and talked about the new1

degree of care that should be taken in traveling on public2

transportation.3

And then on March 9th to see a diminished4

attendance rate among grand jurors, I think probably pretty5

clearly because of the state of emergency and the change in6

recommendations for travel on public transportation, to not7

make any effort that week to get Mr. Ebanks into the grand8

jury I think is an unnecessary delay.9

And finally to comment on this being some sort of10

an attempt to blame the government for not anticipating the11

pandemic, that's not what I'm trying to do here.12

But, Your Honor, the government is arguing that Mr.13

Ebanks should bear the full brunt of this pandemic. He's the14

one who's in custody on a hearsay complaint and he's the one15

who's in custody, has been in custody for 60 days on this16

hearsay complaint, when there was a case that was indicted,17

that was headed for trial and now all of that's been18

derailed, I don't think Mr. Ebanks should be the one who19

bears the burden of this. And this is all I have. 20

THE COURT: Ms. Whelan, just one question that21

maybe you can answer before I hear from the government.22

You indicated that Mr. Ebanks was scheduled to23

appear in state court for some proceeding I think on March24

12th I believe was what was in your letter.25


8

Is it your understanding that the state court is 1

proceeding with criminal trials at this time? 2

MS. WHELAN: I'm not sure that they're proceeding3

with criminal trials at this time. Just to correct, I may4

have said March 12th in my letter, but on March 10th I5

received a call from his defender -- his public defender at6

the Legal Aid Society and she was asking me whether the case7

had been indicted, because the state court was saying that it8

hadn't been indicted and they weren't going to dismiss their9

case until they had confirmation that it had been indicted in10

federal court.11

I've spoke with Ms. Ricks since then. At this point12

they are not proceeding with state trials. However, I would13

note that Mr. Ebanks' appearance, his next appearance was14

scheduled for May 12th. The citywide restriction, at least15

the stay at home rules, are expected to be lifted on May16

15th. 17

I don't know -- neither the mayor nor the18

government have explained how they're going to be proceeding,19

how they're going to be moving forward with state courts but20

at this point, yeah, I can confirm there are no trials21

ongoing in state court, but I don't know that that's going to22

be the case after May 15th. 23

THE COURT: And just one other question, because I24

think as you can see in your argument, the government could25


9

dismiss the charges at this point in time and bring them at a1

later point.2

What is the benefit to Mr. Ebanks to being3

transferred to state prison rather than federal? And I raise4

this because there was another incident, or another case in5

which a request was made to send someone to Rikers because it6

was believed things were better there and, in fact, things7

were actually worse there.8

So I just want to understand from Mr. Ebanks'9

perspective the benefit of being transferred from MDC to -- I10

don't know where he would be held but maybe you would know. 11

MS. WHELAN: Yeah. Your Honor, initially I didn't12

raise this argument about unnecessary delay when Magistrate13

Judge Bloom issued her order on March 18th because I spoke to14

his Legal Aid Society attorney, and I spoke with his parole15

revocation attorney ,and they both advised me not to do it16

because the situation at Rikers in terms of Coronavirus was17

worse. 18

They had active outbreaks that they were at least19

reporting. I don't know that there weren't active outbreaks20

at the MDC, but the MDC wasn't reporting any active21

outbreaks, whereas Rikers was.22

And at that time they were -- it appeared that they23

were overwhelmed and were not able to deal with the outbreak.24

However, prior to filing this motion I spoke to Ms.25


10

Ricks, who is his Legal Aid Society attorney, and Mr. Urion1

(ph), who is his parole revocation unit attorney, and they2

thought that conditions had gotten better at Rikers.3

So in terms of the physical safety issue, I don't4

see a difference between his being at the MDC now, where I'm5

sure the court is aware the conditions are quite bad, versus6

Rikers, where they appear to be openly and honestly7

addressing the problem that they have, and appear to have it8

under control.9

But the second argument is that, as I pointed out,10

Mr. Ebanks' case is trial ready in the state court. And so11

if he were transferred back to Rikers, if the courts are able12

to open up at the end of the May, the beginning of June, that13

case can proceed to prosecution and Mr. Ebanks is in a14

position to be able to defend himself.15

If the delay in the federal case is continued and16

he's held in federal court to now, which is going to be ten17

days -- June 25th or ten days beyond any further18

administrative order, he's starting at day one.19

The case hasn't been indicted. It would be20

indicted. We would go to court. He would be arraigned on21

the indictment. He would then make a discovery demand. The22

ordinary time frame for the government in providing discovery23

is 30 days. 24

It might be expedited because of the status of the25


11

state case but, again, he's being put in a position where1

he's being held in federal court, or in federal custody, on a2

case that is not -- has not even begun procedurally, whereas3

the exact same charges are being prosecuted in state court4

and they're ready to go as soon as the restrictions are5

lifted.6

THE COURT: Yeah. Okay. That's exactly why I asked7

whether you knew whether trials were going forward because,8

obviously, if trials don't go forward until after June, he's9

still in the same position, I suppose.10

But in any event, let me hear from the government11

in response. 12

MR. BUSHWACK: Thank you, Judge. A couple of points13

I'd like to make.14

The first is with respect to the resources or15

efforts to secure a grand jury, the special grand jury on16

Wednesday, the 18th. 17

I just want to make very clear that there was no18

marshaling of efforts or resources as it relates to the19

special grand jury.20

Grand jurors are human beings who can either show21

up or not, because on their individual circumstances -- and22

it just so happened that there was a quorum of special grand23

jurors on that Wednesday, March 18th. So that's the first24

thing.25


12

The second thing is that in response to why the1

government didn't present the case to the grand jury on days2

two or three, which would have been the Thursday or the3

Friday following the demand of the preliminary hearing, you4

know, the government is given 14 days for a reason; to get5

all the ducks in a row and make sure everyone is available.6

And the idea that the day after the defendant7

requested a preliminary hearing that we didn't present the8

case to the grand jury, I don't think that should carry the9

day.10

I also just want to note -- and I'm looking at my11

calendar here, and I'm not suggesting that this is12

controlling, Your Honor. However, the defendant first13

appeared on March 4th.14

Well, that following week on March 11th I had a15

suppression hearing in Central Islip before Judge Tomlinson16

on United States vs. Tunstall. 17

Unfortunately, the defendant refused to come to18

court that day and then it was adjourned until the Friday of19

March 13th, which is when we actually did, in fact, conduct20

that pre-trial suppression hearing. That was on the Friday.21

And then we've outlined in our papers the efforts22

that were made on March 16th, 17th and 18th all in an effort23

to try to present the case to the appropriate grand jury.24

Unfortunately, because of these extraordinary25


13

circumstances we weren't able to secure a quorum.1

In terms of the statement that the evidence has not2

been tested, it has been tested to a certain degree because3

there is an indictment in state court, as counsel indicates.4

So there has been a finding of probable cause by a5

state grand jury as to the underlying facts and circumstances6

of this case.7

I've also provided information to counsel in terms8

of the strength of the case. I've indicated on numerous9

occasions I'd be more than happy to share additional10

information.11

I'll also note that I notice yesterday that12

Governor Cuomo issued an Executive Order, 202.28 and he,13

through that executive order, further extended the state14

equivalent of preliminary hearing, which is their New York15

Criminal Procedure Law 180-80, finding that if a court finds16

that good cause has been shown, that there can be an17

extension of the time for the state to conduct their felony18

exam, or preliminary hearing, which typically has to happen19

within 144 hours.20

And in that executive order the governor states21

that the inability to impanel a grand jury due to COVID-1922

may constituted as such good cause.23

So I bring that just because it's certainly24

pertinent and it's relevant and it's timely. And for the25


14

most part, we'll rest on our papers that this pandemic has1

caused these extraordinary circumstances and that justice, in2

fact, does require the delay.3

And as soon as a grand jury is able to be4

empaneled, an appropriate grand jury, the government5

anticipates going right into the grand jury and presenting6

Mr. Ebanks' case to that grand jury.7

THE COURT: Let me ask you, Mr. Bushwack, the8

question I sort of asked Ms. Whelan, which is what's the harm9

to the government in dismissing the complaint at this time,10

understanding that you can come back and reinstate the11

charges either -- I think even by complaint or by grand jury12

indictment once we have a grand jury, that this dismissal13

would be without prejudice.14

And as she has indicated, he's being held on not15

only the state charges but the parole violation as well. So16

it's not likely that he's going to be out in the community17

between now and whenever the next time we can do anything as18

a result of this virus occurs.19

So what's the government's reason for not doing20

that? 21

MR. BUSHWACK: Well, we certainly have an interest22

in this prosecution and essentially just don't feel that it's23

warranted to dismiss this complaint.24

You know, I'm not going to try to predict what will25


15

or may or could happen in the state system. I don't think1

anyone really has a clear understanding as to when hearings2

and trials are going to proceed and move forward in the state3

system.4

So while you bring up a valid point certainly that5

that is an option, we just don't feel that it's warranted6

here because there has not been any undue delay but for these7

extraordinary circumstances. 8

THE COURT: The other issue, Mr. Bushwack, that you9

haven't addressed is the fact that Judge Mauskopf's latest10

administrative order did extend the time for a preliminary11

hearing, but had a specific caveat that they must be held12

within 60 days of the date of arraignment, which would have13

placed I guess Mr. Ebanks' hearing date for I think May 4,14

had I not issued the further order extending the time.15

And I guess my question is how do we get around16

that? In other words, if the chief judge felt that it was17

appropriate not extend not only speedy trial until June 15th,18

but also all preliminary hearings, why did she put the caveat19

in there that as long as it wasn't 60 days beyond the date of20

initial arraignment?21

I realize you don't have any insight into what the22

judge was thinking, but I guess my question is how do we get23

around that? 24

MR. BUSHWACK: I think that the same reasoning25


16

applies and I think that the initial executive order, which1

extended it 60 days from the initial appearance, which to2

your point correctly states that that puts us on May 4th,3

unfortunately, the most recent administrative order talked4

about what I would call new arrests, or new initial5

appearances and, unfortunately, was silent as it relates to6

previous arrests or initial appearances that fall in that7

same category.8

So I think those same reasonings that the judge9

used -- and, again, I'm not trying to get into the judge's10

mind, and you're correct that I have no inside information as11

it relates to her reasoning, but I think that the reasoning12

that was applied in the first executive order -- excuse me,13

administrative order, extending the time period for14

preliminary hearings for 60 days after initial appearance15

still applies certainly to the most recent administrative16

order, that the government has 60 days from initial17

appearance to conduct that preliminary hearing.18

So I think the reasoning still applies. For some19

reason unbeknownst to me that specific -- this specific type20

of case, Mr. Ebanks' case and the timing of it wasn't21

specifically addressed in that administrative order. 22

THE COURT: I guess what I would say is I agree23

with you that this is sort of a sui generis case in that I24

suspect there weren't a lot of arrested individuals who25


17

weren't indicted in that very short period of time that we're1

discussing. But I still have the language of the2

administrative order that I must deal with.3

Ms. Whelan, do you have any thoughts on this issue? 4

MS. WHELAN: Your Honor, I don't. I think Judge5

Mauskopf set out her order. I think that Mr. Ebanks' case6

clearly falls within that order. It's been more than 60 days7

since his initial arraignment and I think that the complaint8

should be dismissed.9

I think, you know, to get back what the government10

was saying about having an interest in this prosecution, the11

prosecutor is saying well, there's 14 days for a reason. And12

he had a suppression hearing in Central Islip on the 11th13

that was then adjourned to the 13th.14

I mean, at that point when grand jury attendance is15

diminishing, that's when the case should have been assigned16

to another AUSA to present in the grand jury if the17

government had such an interest in the case.18

And with respect to not knowing what's going to19

happen in the state, whatever happens in the state with20

respect to Mr. Ebanks' case, it's going to happen before21

anything happens in the federal court. And that's because22

the case is indicted. It's in a trial part. It's ready to23

go. 24

Whereas the federal case is going to have to wait25


18

until there's a quorum for the grand jury, or the courts1

reopen for preliminary hearings and then there's going to be2

the delay for the arraignment on the indictment. Then3

there's going to be further delay in presentation of the4

discovery.5

And whatever happens in federal court will not6

happen at the rate that the prosecution can take place in7

state court. 8

And the interest to the government, if it was so9

great, should have prompted them, once they realized that10

there was a problem, after the declaration of the state of11

emergency, after the concerns about public transport and the12

evidence of diminished attendance in the grand jury should13

have prompted them to reassign the case, if Mr. Bushwack was14

not available.15

And I think that in this situation that was an16

unnecessary delay in the case and that Mr. Ebanks' federal17

complaint should be dismissed and he should be returned to18

Rikers to stand for state prosecution.19

THE COURT: I have one other issue that neither one20

of you has addressed, and that is that obviously at the time21

of Judge Bloom's initial decision putting off the preliminary22

hearing, the court had no capability of conducting23

proceedings and the court was essentially closed to the24

public.25


19

However, we now have capability, as primitive as it1

may be, to conduct video proceedings and the CARES Act2

specifically include preliminary hearings as one of the3

proceedings that is authorized to be conducted remotely.4

So my question is -- and this is really directed to5

the government in the first instance, because the government6

under the case law has the burden providing specific factual7

reasons related to this particular case beyond the absence of8

a quorum of the grand jury, what facts would prevent us from9

holding a preliminary hearing by video conference or, you10

know, some other remote capability?11

MR. BUSHWACK: A couple of things, Your Honor. 12

The -- whenever the government was prepared to move13

forward with the preliminary hearing on Wednesday, March,14

18th, the main witness was in my office and we were ready to15

proceed.16

I have since learned that given this pandemic he17

has gone on an extended leave, and some type of18

administrative leave. I don't have further details from that. 19

That information was given to me through a New York City20

Police officer detective.21

In terms of the ability to prepare with the witness22

and prepare that witness for cross examination and the direct23

examination, the whereabouts of that witness, that witness'24

ability to participate in a video conference, I can't -- I25


20

don't know of those abilities for that witness at this time.1

So it would be extremely difficult to try to2

prepare this witness in such a way that he has is prepared to3

move forward with this preliminary hearing, should it happen4

over video. 5

And the same would hold true for myself, the6

ability to have access to the files. You know, we're7

teleworking, and have the information available to us that we8

could then appropriately prepare for such a hearing would be9

very, very difficult.10

THE COURT: Well, let me ask you this. I mean, you11

say the witness is on extended administrative leave. You12

don't know where he is. I appreciate that. And I think the13

thing that was puzzling to me was you said his willingness to14

appear. I don't really understand what that is.15

Is this a law enforcement officer or a civilian16

witness that we're talking about? 17

MR. BUSHWACK: I'm sorry. Maybe I misspoke. What I18

meant was his ability to just technologically get with a19

video -- just the technology behind videoconferencing. 20

That's all I meant.21

No, he's certainly a willing law enforcement22

witness. So if I misspoke, I apologize. 23

THE COURT: Yeah, I wasn't -- that's fine. 24

But actually, you're just speculating. You haven't25


21

spoken to him. You don't know where he is. Presumably, you1

prepared -- because you indicated at least on two occasions2

to Judge Bloom that you were ready to go on the preliminary3

hearing.4

You have the burden of proving that there are5

specific facts. And I would suggest you look at this case6

out of the District of Nevada, where the district court, in7

what I hope nobody ever does to me, was a little bit harsh on8

the magistrate judge for not making the specific finding that9

the government had the burden of proving related to that10

case.11

And now I just -- I had it up on my screen a minute12

ago and now I can't find it. Lauren, do you have the cite13

for that -- the Elms case I believe it is.14

THE CLERK: I do, yes. It's 2020 Westlaw 2085970,15

and it's out of the District of Nevada on April 30th, 2020.16

THE COURT: I mean, I guess, obviously, the17

government has put forth its reasons, but I should also ask18

Ms. Whelan whether or not your client would consent to a19

preliminary hearing via video conference. Because if not,20

then the issue is a little clearer for me. 21

MS. WHELAN: Your Honor, I would need to speak22

privately with Mr. Ebanks about the pros and cons. Some of23

my concern would be -- definitely would have to be some kind24

of video. Mr. Ebanks would have to be able to see the25


22

proceedings.1

I also watched a proceeding on a preliminary2

hearing in the Northern District of Georgia Monday or Tuesday3

of this week. And I was concerned about the inability to see4

the other participants while the conference is going on.5

I mean, I'm not -- I understand that we're all6

operating under difficult circumstances, but it would7

definitely need to be by video. 8

They were able to arrange a separate phone line so9

that the defense attorney and the client could speak during10

the preliminary hearing privately. They had also set up a11

situation where they could carve out a room for sidebars.12

You know, I think that it would be feasible to go13

forward with the preliminary hearing via video if we had that14

same technological situation. My concern would be that so15

far we haven't.16

And there's an issue of -- part of the problem is17

that when they go to looking at documents in evidence,18

everybody disappears from the screen. There may be a way to19

fix that. That may have just been for the audience. But I20

think that we would need to clearly exceed our video21

capabilities now. 22

For example, I've been told that I was going to23

have video conferences with two legal calls this week, one of24

which was Mr. Ebanks, but here was no video in place for us25


23

to be able to do that.1

The last time I had a presentence interview via2

video the remedy was to put my phone next to the probation3

officer or to put -- the probation officer put her phone next4

to the video monitor and that's how I had to hear. 5

So we would definitely need to have all parties6

visible and available, and we'd have work out the issues of7

the separate phone line for defense counsel. 8

And Mr. Ebanks we'd have to work out the ability to9

present documents and we would have to work out the ability10

to have a carve out space for sidebars, because I was able to11

view the Northern District case because it's a court12

proceeding and it's open to anyone and anyone should be able13

to video remote in to watch this public proceeding. 14

THE COURT: Well, we have recently -- I guess at15

the beginning of this week I think successfully established a16

new process, the Cisco WebEx process, which allows the court17

to conduct proceedings remotely with individuals such as Mr.18

Ebanks, who is currently in the MDC. I personally have not19

tried it yet. I'm supposed to actually be trained today on20

it. So I don't know, Ms. Whelan, if that was what was being21

used in your experience or not. 22

But I guess what I would say is before I rule on23

this issue I need to hear both from the government as to24

whether or not their witness is, in fact, available and could25


24

be produced by video. And from Mr. Ebanks, after you've had a1

chance to speak to him, Ms. Whelan, about whether or not he2

consents.3

If he does not, then I will deal with the motion as4

it's currently before me, but on the other hand if everyone5

is willing to go forward on video conference, I guess it will6

be up to make sure that we can do it. 7

So can I hear back from you all -- I don't know if8

it's possible to speak to Mr. Ebanks before Monday, but I9

would like to move this along quickly, if we can. 10

MS. WHELAN: Your Honor, I think what I could do is11

I can set up a legal call for Mr. Ebanks either this12

afternoon or Monday so I can speak to him about this issue,13

and then I could hopefully get back to you by close of14

business in Monday. I'm not sure that I'd be able to get back15

to you sooner than that. 16

But if I say it's an emergency, I think they can17

get me a legal call scheduled. 18

THE COURT: Okay. Well, let's aim for that. And I19

assume, Mr. Bushwack, you can reach out and try to find out20

where your witness might be and let me know, you know, what21

his view is.22

I understand the files may be in the office, but I23

do also understand that certain Assistant U.S. Attorneys are24

in the office. So perhaps someone could dig up the file for25


25

you and get you the information.1

If that's not possible, then I need to know that as2

well. Okay? 3

MR. BUSHWACK: Understood. And how would you like4

to get back in touch, via letter or a telephone conference? 5

THE COURT: Yes. A letter would be fine. And once6

I get your letters, if we need to speak again, then I will --7

you know, if Mr. Ebanks says no, then I just have to decide8

the issues before me.9

So I think letters would be fine in the first10

instance. Okay? 11

MR. BUSHWACK: Okay. Thank you. 12

MS. WHELAN: Thank you, Your Honor. 13

THE COURT: All right. Ms. Whelan, anything else? 14

MS. WHELAN: No, Your Honor. Not from the defense. 15

THE COURT: Okay. If for some reason you cannot16

get a phone conference with Mr. Ebanks, you know, in time to17

get something in to me by close of business Monday, just18

shoot me a quick like one liner saying, you know, I can't do19

it, Judge. Can I have a little more time. Okay? 20

MS. WHELAN: Sure. I will. And if it looks like I21

need an order to help me boost that long, I'll send that22

over. 23

THE COURT: Yes. Just submit one, okay? 24

MS. WHELAN: Okay. All right. 25


26

THE COURT: All right. Thank you, everyone. 1

2

(Proceedings concluded at 9:40 a.m.)3

I, CHRISTINE FIORE, court-approved transcriber and4

certified electronic reporter and transcriber, certify that5

the foregoing is a correct transcript from the official6

electronic sound recording of the proceedings in the above-7

entitled matter.8

9

10

May 8, 202011

Christine Fiore, CERT12

Transcriber13

14

15

16

17

18

19

20

21

22

23

24

United States Attorney Eastern District of New York CLE...2020/05/18 · U.S. Department of Justice...

Documents

Transcript of United States Attorney Eastern District of New York CLE...2020/05/18 · U.S. Department of Justice...