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Case 1:19-cr-00830-AT Document 26 Filed 02/10/20 Page 1 of 15
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x
UNITED STATES OF AMERICA, New York, N.Y.
v. 19 Cr. 830(AT)
TOVA NOEL and MICHAEL THOMAS,
Defendant.
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January 30, 2020
11:00 a.m.
Before:
HON. ANALISA TORRES,
District Judge
APPEARANCES
GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
BY: JESSICA R. LONERGAN
NICOLAS T. LANDSMAN-ROOS
REBEKAH A. DONALESKI
Assistant United States Attorneys
FOY & SEPLOWITZ, LLC
Attorney for Defendant Noel
BY: JASON E. FOY
ERIC SAGARRA
LAW OFFICES OF MONTELL FIGGINS
Attorney for Defendant Thomas
BY: MONTELL FIGGINS

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(Case called)
THE COURT: Good morning. We are here in the matter
of the United States v. Tova Noel and Michael Thomas.
Would you make your appearance, please.
MS. LONERGAN: For the government, Jessica Lonergan.
With me at counsel table are my colleagues Nicholas Roos and
Rebekah Donaleski. Good morning, your Honor.
MR. FOY: May it please the court, your Honor, Jason
Foy, for Ms. Tova Noel, standing to my right. Also with me at
counsel table is associate counsel Eric Sagara. Good morning,
your Honor.
MR. SAGARA: Good morning, your Honor.
MR. FIGGINS: Good morning your Honor. Montell
Figgins on behalf of Michael Thomas, representing my client,
who stands to my right.
THE COURT: I understand that the defense is
requesting that I adjourn the trial because of the volume of
discovery. I will hear you on that.
MR. FOY: Yes, your Honor. We are asking that the
trial date of April 20, 2020, be moved to sometime in October
or a date thereafter that's convenient to the court. The
reason for the request is because it is necessary in order to
provide an adequate and effective assistance of counsel. Why?
Yes, because of the voluminous discovery. But also because of
the amount of time it is going to take for us to conduct our

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own investigation, which can't really fully get started until
we appreciate what information has already been provided.
That's really the crux of the reason.
Now, I noted in the government's opposition, although
they agree that some adjournment is warranted, I guess the
issue is of how long the adjournment should be. The defense is
in the best position to assess how much time we need to perform
our important function on behalf of our clients. I say that
because we are not making a request for the purpose of simply
delaying the proceedings. We are doing it because it is
actually necessary to accomplish our goals as counsel.
Also, which I did not reference in my letter, is it
also takes into account my trial schedule, at least why my
request was. Last week, I was scheduled to start a trial
before Judge Ramos in 40 Foley Square in July. And part of
what I discussed with Judge Ramos in setting that trial date
was that I knew that this trial may need to be accommodated in
some way. He selected July 20 for that date mostly because of
the court's availability at that time. That's also part of the
reason. And in that particular case, my client's been
incarcerated for almost two years. He is facing a mandatory
life sentence. So I do need to spend some of my time getting
ready for that as well, and I expect that to be our trial date.
THE COURT: What's the date?
MR. FOY: What's the date?

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THE COURT: In July.
MR. FOY: July 20 for that trial.
So really it's so we can perform our functions, and of
course there are other things going on as far as
responsibilities, and that would give us sufficient time to be
ready. It is not an unreasonable request. To say a case that
started on November 19, 2019, to be tried in less than a year I
don't think is an unusual circumstance. I don't think anyone
can say it is delayed justice. My client, who is free, she is
not incarcerated, so we don't have any of the interests of an
incarcerated defendant who wants to get a speedy trial. It is
necessary, not an option, not just something we just feel like.
This isn't about us laying back, taking our time. It's about
doing a diligent job. In order to do that, we do need the
time, and I would ask that you grant the request.
THE COURT: How long is the Judge Ramos trial?
MR. FOY: The government represented that they expect
it to be about two weeks.
THE COURT: Starting on July 20 you said, yes?
MR. FOY: That's correct.
MR. FIGGINS: Your Honor, I also join in the motion.
The court has had a chance to read my letter with respect to
requesting an adjournment. It is very early for us at this
point even to have a full appreciation as to what's going to
happen in this matter. I have only had the discovery for

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approximately two weeks. It's going to take -- I think there
was at least 25 witness statements that we not only need to
review, but then we need to try and follow up and maybe contact
those witnesses. There are some people who were incarcerated,
may have been released. There are numerous things that must be
done in terms of at least us tracking down specific details
that our clients are demanding that we do in their defense.
It took the federal government 90 days to investigate
this case and to come up with an indictment. Accordingly, a
law firm with one or two attorneys, without the resources of
all the federal agencies, it is going to take us more than 90
days to do the same amount of work. So I don't think that it
is an unreasonable request.
Not to mention, I believe that if the court were not
to grant some type of an adjournment, we are going to find
ourselves back here again, but the defense will just be in a
better position to give you more specifics as to why we need
more time á la maybe we can't track down this witness or we
spoke to this witness and now we have to find another one.
There are numerous things like that that I think would come
about, and that's why we would try and suggest to give the
court a bird's eye view of that early on, so that maybe we can
delay -- or avoid having to come back repeatedly just to make
those additional requests.
Additionally, your Honor, I do believe that there is a

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high likelihood that I'm going to file a motion to dismiss the
indictment based on selective prosecution. I do believe that
if certain portions of that motion are granted, then that's
going to entitle the defense to additional discovery that we
haven't even received yet.
So with the request that we are asking for, we are
also having an opportunity to kind of see -- I know kind of the
things that are going to happen or potentially will happen, so
instead of just trying to come back here three or four times to
say this is happening, we can kind of just do this now and
realize that that motion will probably be filed. That may
create other issues with respect to discovery.
Also, your Honor, I have also made a specific request
under Rule 16 that the defense wants whatever investigation was
done and whatever information there is that is discoverable
with respect to the Inspector General's report. It is my
position that we are entitled to that information. It is an
investigation of the same incident. It is an investigation of
the circumstances with which my client is being charged. With
that being said, I do think that we are entitled to whatever
information was generated in those reports, so I believe that
also is going to cause a delay in the trial wherever we go with
that issue.
THE COURT: We already addressed that the last time.
(Pause)

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THE COURT: I will hear from the government.
MS. LONERGAN: Yes, your Honor. As we put in our
written submission to the court, we agree that a brief
adjournment is appropriate, but we do not think that a
six-month adjournment is necessary or warranted.
First, the amount of discovery in this case is not
particularly voluminous nor complex in light of the cases tried
in this district; and, in addition, the further investigation,
I want to focus the court on the facts that are going to be at
issue in this trial occurred over a 14-hour period. It is true
that, as part of our discovery, we provided information outside
of that 14-hour period, anticipating many of the types of
requests that the defense counsel has already begun to make.
But again, your Honor, this is a very focused, single-incident
indictment that is about what happened over the period of 14
hours. A much larger investigation about, for example, the
working conditions at the MCC, it is just not relevant to what
is going to be the issues on trial here.
I want to also touch on something that plaintiff said
about the need to interview witnesses. As we explained to the
court, we have done something that's unusual here, which is
that we have provided witness statements with our initial
discovery almost four months in advance of trial. As the court
is aware, we typically provide what we call 3500 material much
closer to trial. So the need to review those witness

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statements and interview additional -- interview those
witnesses, that can't possibly weigh in favor of an adjournment
when in fact the defense counsel has so much more time with
those materials than they would in a typical trial schedule
where they might have those materials just a few weeks before
trial, your Honor.
So for those reasons, we think that we are hard
pressed to identify areas of additional investigation that
would touch on the 14-hour time period that is going to be at
issue in this trial; and so, for those reasons, while we agree
that a short adjournment is warranted, that six months is not
required. We do understand of course that that may be
difficult with Mr. Foy's trial schedule with having the July
trial, but it seems like there may be a possibility of putting
this trial before Mr. Foy's July trial and still giving him
sufficient time to prepare for both.
THE COURT: And how long do you expect this trial to
go?
MS. LONERGAN: Your Honor, if this trial is confined
to that 14-hour time period, setting aside jury selection, I
can't imagine it lasting more than a week.
THE COURT: Okay. The trial is set for June 8.
With respect to the motion to dismiss, the motion is
due on March 9, opposition is due by April 6, and the reply is
due on April 20.

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Are there any further applications?
MR. FIGGINS: Yes, your Honor. You said we dealt with
the issue with respect to the Investigator General's report.
This court has never addressed it at all. You never said
anything with respect to that. So I just want to make that
clear. Do I need to file a motion with respect to that?
THE COURT: You may file a formal motion.
MR. FIGGINS: Thank you.
THE COURT: Anything further?
MR. FIGGINS: Your Honor, can I have an additional two
weeks? Can we push the motion schedule back at least an
additional two weeks? Because I have my 80-something-year-old
relative coming to visit me from February 23 through March 1,
so I kind of won't be working during that time. So if you
could just make it like -- if you could make it something
around like the 18th or the 21st.
THE COURT: All right, then. You can file your motion
by March 20.
How long does the prosecution need to oppose?
MS. LONERGAN: Your Honor, three weeks, please.
THE COURT: So the prosecution will file opposition on
April 10, and the reply will be April 24.
Is there anything further?
MS. LONERGAN: Yes, your Honor, at this time the
government moves to exclude time between now and the trial

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date, which has now been set for June 8, for the following
reasons:
It will allow the parties to discuss potential
pretrial dispositions, to allow defense counsel to review the
discovery, make and file motions, the court to resolve those
motions, and for the defense counsel to conduct the additional
discovery that they have been discussing today in court.
MR. FOY: Your Honor, I don't oppose the government's
position.
I wanted to just go back to one thing. I understand
you have ruled. I accept that it is June 8. Hopefully there
are no delays because I anticipate being out of the country --
we haven't set a specific date, but I'm traveling with family
at the end of June. So if there is any delay, that could be an
issue.
THE COURT: You are talking about leisure travel?
MR. FOY: Well, leisure. My family, first-priority
travel. That's what it is. So I don't know if it's just
leisure. It is not business, but it is the business of having
family business.
THE COURT: Well, you should work your family schedule
around your professional obligations, counsel.
MR. FOY: Well, if there is a delay in the
professional schedule of trial, because it is not unusual for
sometimes there to be delays, because if we start a week later

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for some reason, then it's going to create a conflict.
THE COURT: You will not be starting a week later. We
are starting on the 8th of June.
MR. FOY: Okay. Here is the issue. The government
has represented to you that this is just about a 14-hour
period. I suspect that, when the trial comes around, that the
only thing that won't come up during the trial is the 14-hour
period, right? Because it's not as if we are not here because
of other things having nothing to do with the defendants in
this case, and the working conditions at MCC are directly
related to why things happened in that 14-hour period. The
years of conduct, the culture of the institution, the failures
in security measures beyond counts.
We have been provided with three videos of the 192
that exist. In the SHU there are nine video cameras. Only one
has been produced, and it shows almost nothing. And why that
is, the circumstances, what it means, is relevant.
So maybe it will be a one-week trial. That's
possible. But what I am trying to avoid is some type of
conflict that we can see now that -- you know, because, you
know, I understand professional obligations, but if I had to
choose between family and my professional obligations, it's --
THE COURT: All right. Well, counsel, I am directing
that you be here on June 8 to start trial.
MR. FOY: I will be here.

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THE COURT: That is my order.
MR. FOY: And I will be here. I just don't want there
to be any delay that creates that issue.
MR. FIGGINS: Your Honor -- sorry to cut you off.
Your Honor, I'm thankful Mr. Foy said that about the
family vacation. I am actually going to be in Italy on a
cruise June 1 through June 14. We fly back on the 15th of
June.
THE COURT: And you just forgot about it?
MR. FIGGINS: Your Honor, I don't keep my social
calendar. Luckily he said that and I realized that in June we
do have a cruise scheduled, and I didn't even know the date, so
I had to find out just now.
THE COURT: When do you return?
MR. FIGGINS: The 15th, and I don't even know what day
of the week that is, but . . .
THE COURT: We will start on the 22nd of June.
MR. FOY: Well, Judge, that's the time I was just
talking to you about. Right? That I'm trying to make
arrangements to travel with my family. Right?
THE COURT: Well, I understand that it is desirable to
have family time, but you also have an obligation to zealously
represent your client, and so we are going to start on the
22nd.
MR. FOY: So I don't understand. I mean, I have no

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problem zealously representing my client, and I will do so. If
my daughter is going to be in Italy, ironically, and my wife
and my other daughter are going to travel there at the end of
her program so we can spend time, how is that an issue for us
to take that into consideration in a professional setting?
Like, I don't understand.
THE COURT: Counsel, you will use Skype. Is there
anything --
MR. FOY: No, no, no, no, no, no, no, no.
THE COURT: Is there anything further?
MR. FOY: I'm not going to use --
THE COURT: Counsel, I have heard enough. Is there
anything further?
MR. FOY: Well, look, I'm not --
THE COURT: Sit down, counsel.
MR. FOY: Can I be heard?
THE COURT: You will sit down.
MR. FOY: And then be heard from the seat?
THE COURT: No. You will sit down.
Is there anything further unrelated to the vacation
plans --
MR. FOY: This is not just vacation, your Honor.
THE COURT: Counsel, I have had it. Now, you sit down
and stop --
MR. FOY: Before --

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THE COURT: -- with this nonsense.
MR. FOY: Before I sit down, your Honor --
THE COURT: No.
MR. FOY: -- you said June 8.
THE COURT: Counsel, I have directed --
MR. FOY: My co counsel --
THE COURT: -- you to sit down.
MR. FOY: My co-counsel says --
THE COURT: Sit down, counsel.
MR. FOY: -- he has vacation and --
THE COURT: Sit down.
MR. FOY: -- we are going to interrupt --
THE COURT: Sit down.
MR. FOY: -- my family --
THE COURT: Counsel.
MR. FOY: -- obligations --
THE COURT: Counsel.
MR. FOY: -- for a nonviolent --
THE COURT: Sit down, counsel.
MR. FOY: -- criminal case with no mandatory jail --
THE COURT: Counsel, sit down.
MR. FOY: -- that's not even --
THE COURT: Sit down.
MR. FOY: -- based on their conduct?
THE COURT: Sit down.

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MR. FOY: It's based on what some other man did?
THE COURT: Counsel, you don't have a jury here. Stop
performing.
MR. FOY: No. I'm not -- there is no jury here. I'm
trying to address the unfairness --
THE COURT: Sit down.
MR. FOY: -- of proper consideration of a
professional --
THE COURT: You are trying my patience, counsel. Sit
down.
All right, then. The matter is adjourned.
MS. LONERGAN: Your Honor, sorry. We are going to
amend our application to exclude time now until June 22, which
is the date the court has now set for trial for the reasons we
previously stated on the record.
THE COURT: The matter is adjourned until June 22.
The time is excluded under the Speedy Trial Act for the reasons
already stated by the prosecution.
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