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1 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x

3 UNITED STATES OF AMERICA, New York, N.Y.

4 v. 18 Cr. 218(RMB)

5 TYLER TORO,

6 Defendant.

7 ------------------------------x Teleconference

8 May 13, 2020

9:05 a.m.
9

10 Before:

11 HON. RICHARD M. BERMAN,

12 District Judge

13

14
APPEARANCES
15
GEOFFREY S. BERMAN
16 United States Attorney for the
Southern District of New York
17 BY: ELIZABETH A. HANFT
Assistant United States Attorney
18

19 SABRINA P. SHROFF
Attorney for Defendant
20

21 GERALD J. DiCHIARA
Attorney for Defendant
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23

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1 THE COURT: Elizabeth Hanft, can we start with you and

2 hear if there are any updates and information since our last

3 meeting, which I believe was May 7 or so, last conference. And

4 how are you?

5 MS. HANFT: Yes, your Honor. Good. Thank you, your

6 Honor.

7 As to Mr. Toro, the parties have learned from MCC

8 legal that he is now set to be released on home confinement, is

9 our understanding, on May 27. That is -- we have learned that,

10 the parties learned that yesterday. I believe prior to that,

11 we had received an indication that in fact he would be going to

12 a residential reentry center, that is Brooklyn, on that same

13 day, and then we received an e-mail yesterday that in fact

14 there had been a change of plans and that he was being released

15 to home confinement on May 27.

16 THE COURT: I think --

17 MS. HANFT: I think that the parties have followed

18 up --

19 (Indiscernible crosstalk)

20 THE COURT: Well, I think it is great. I think we

21 should hear from Ms. Shroff if she thinks it is great. But I

22 think, joking aside, I think that is -- well, I think I will

23 not say more until I hear from everybody else. Have you

24 finished, Ms. Hanft?

25 MS. HANFT: I was just going to say, your Honor, I

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1 think both parties have reached out with a few additional

2 questions. Mr. DiChiara wanted to know, you know, what steps

3 needed to be taken. I also reached out for confirmation

4 yesterday and then again this morning that that means that his

5 application has in fact been approved, just to double check,

6 because the information we received was a little bit sparse,

7 just that he was going to home confinement on May 27. We

8 haven't received word back from that yet, but that is what we

9 have been told is that Mr. Toro will be released to home

10 confinement on May 27.

11 THE COURT: Let's hear from Sabrina and defense

12 counsel.

13 I am trying to think -- well, here's a question that

14 you could address. Do we have in place or does there need to

15 be in place conditions of home confinement that we haven't

16 addressed yet and how are we going to address that? I guess

17 that when they make that determination, that sets up the

18 probation department to get involved. How do we help? Or

19 maybe not at all. Maybe we just stay out of the way and that's

20 the most help. So it seems to me that I would like to have

21 some understanding of how the process happens.

22 Who wants to go next, anybody?

23 MR. DiCHIARA: Well, Judge, I'm not going to address

24 your question because that was sort of the same question I put

25 to Ms. Hanft and the MCC.

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1 But I do want to take a moment to thank your Honor and

2 thank Ms. Hanft, who conveyed to MCC your sentiments from the

3 last court conference, and I think that that expedited this

4 whole process. On behalf of Mr. Tyler Toro, we appreciate it

5 very much. Thank you.

6 THE COURT: Well, I --

7 MS. SHROFF: Your Honor --

8 THE COURT: -- Ms. Hanft. She has been doing, I will

9 say, the heavy lifting. I don't entirely know how the process

10 works, but when it works, it just is okay with me however we

11 get there, especially in, you know, these emergency

12 circumstances.

13 So, anyway, Ms. Shroff.

14 MS. SHROFF: Your Honor, I wanted to just say a couple

15 of things.

16 Home confinement is not under the supervision of

17 Probation. As I understand, home confinement, home confinement

18 is under the supervision of the BOP. I just wanted to make

19 sure --

20 THE COURT: Is that right?

21 MS. SHROFF: Yes.

22 THE COURT: Is that right? They have the resources

23 to -- is there, for example, like a caseworker who --

24 MS. SHROFF: That, I don't know how that works. I do

25 know that if there is home confinement from the BOP, the BOP is

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1 subject to supervision by the BOP. If home confinement is from

2 Pretrial or Probation, then home confinement is under

3 Probation's supervision and Pretrial's supervision. That's my

4 understanding.

5 My second -- my question, really, for Ms. McFarland,

6 and I have no reason to bother her anymore, is mainly there are

7 other clients that have been given a target release date and

8 they have not been released because certain steps have not been

9 met. So yesterday evening I checked with Mr. Toro's mother,

10 who is deeply involved in all of this, and she had not been

11 contacted. But I am assuming they verified the home address

12 through some other means, which is fine.

13 But there is no such thing as Probation getting

14 involved. I wanted to let the court know. At least as far as

15 I know. I'm happy to double check and write the court a brief

16 letter. That's number one.

17 And the second thing is, I wanted to make sure that

18 Mr. Toro will actually be released on the target date. That is

19 my biggest concern. Because for whatever reason -- and I

20 understand you have been patient with me, your Honor, but I am

21 assuming that you are not going to grant our application for

22 immediate release and are going to wait until May 27.

23 THE COURT: Right.

24 MS. SHROFF: I just wanted to say --

25 THE COURT: I think that's right.

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1 MS. SHROFF: Okay.

2 So, respectfully, I think Mr. Toro should be released

3 today because I don't want to put him at greater risk. I know

4 that Judge Ramos has allowed the MCC visit with the defense's

5 expert and Ms. Von Dornum to go forward tomorrow. I don't know

6 what that visit will tell the court and everyone else.

7 But in light of the ongoing issue that this has had,

8 we still ask for the same relief, which is immediate release.

9 THE COURT: I get that.

10 MS. SHROFF: But should something go wrong on May 27,

11 we would like the opportunity to be back before the court

12 immediately.

13 THE COURT: Yes.

14 MS. SHROFF: That's all I have to add.

15 THE COURT: Okay.

16 But here is my question for you: Isn't he subject to

17 supervised release?

18 MS. SHROFF: Yes, of course. He is completely subject

19 to supervised release.

20 THE COURT: Yes.

21 MS. SHROFF: You could enter an interim order and we

22 would agree to every level of supervision that this court wants

23 to impose. There is no problem at all.

24 THE COURT: I'm just saying that generally. So when

25 does the supervised release kick in after this release if we do

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1 nothing? We have a judgment of conviction, and it has its

2 terms. So it seems to me that if someone were released to a

3 community confinement center or -- yeah, let's take that

4 example, as soon as that was over, the person is usually

5 subject to supervised release.

6 So just maybe, Ms. Hanft, you know the answer to these

7 questions.

8 MS. HANFT: Your Honor, I do not.

9 As to the question about sort of any intermediate

10 steps that defense counsel had, I share those questions; and

11 that's why, you know, both parties tried to reach out with

12 further questions to MCC legal staff.

13 And, of course, if we hear anything, the parties will

14 alert one another and the court, or at least the government

15 will alert the defense if we hear anything additional.

16 As to the supervision, of course Mr. Toro is subject

17 to a term of supervised release. I understand what Ms. Shroff

18 is saying in that, of course, home confinement is a kind of BOP

19 placement, and so certainly I would imagine there is some

20 supervision by the BOP. I do not know the specific answer as

21 to when the release is subject to home confinement and how --

22 what the overlap between those two methods of supervision is,

23 and I am happy to look into that, your Honor.

24 THE COURT: Yes. I think that is fine.

25 In the meantime, I don't have in front of me -- well,

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1 does one of you or, Christine, do you have the judgment handy

2 just to refresh our recollection about the supervised release

3 terms and conditions that are set forth there just for

4 informational purposes?

5 MS. SHROFF: Your Honor, as I recall, you had a term

6 of supervision with 72 reporting -- reporting within 72 hours

7 of release, and you had mental health treatment as recommended

8 by Probation, and I don't think you had any new special

9 conditions other than the usual conditions.

10 But, as I said, I'm quite certain that we can have

11 Mr. Toro contact Probation immediately upon release just to get

12 it known to them that he has been released.

13 THE COURT: Yeah, yeah. All right.

14 So let's leave it at that. Typically I change the

15 notification period and shorten it from 72 hours. I don't

16 remember if I did in Mr. Toro's case, too, but it doesn't

17 matter.

18 As a practical matter, I would request that you notify

19 Probation. You might want to even give them an informal heads

20 up now so people start to think about what is the --

21 MS. MURRAY: Judge, this is Christine, if I could

22 interrupt for one second.

23 THE COURT: Yup.

24 MS. MURRAY: So supervised release terms include

25 weekly therapeutic individual counseling, they include

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1 substance abuse treatment. Both of those conditions are

2 throughout the term of supervised release. There is also a

3 search condition. There is a condition that defendant is to be

4 supervised in his district of residence and to report to

5 Probation within 24 hours of release from custody. And then

6 the last provision says the terms of supervised release may not

7 be modified without prior approval of the court.

8 (Court and court reporter confer)

9 THE COURT: If everybody could mute their phone for

10 the moment except for Christine.

11 So it does have a 24-hour notification period, as

12 opposed to 72, which is usually my practice.

13 And in addition, Christine, what is the overall term

14 of supervised release? How many years?

15 MS. MURRAY: The term of supervised release is three

16 years.

17 THE COURT: Okay. All right. So that is a framework

18 for everybody to be aware of, and my -- I think I responded to

19 this before, Ms. Shroff, but I appreciate that you have an

20 application for immediate release. I'm going to respectfully

21 decline to grant that application because, as I said earlier in

22 these proceedings, my preference is invariably to defer to BOP

23 and not to try to become a cog in the wheel, as it were, unless

24 of course something happens and it is appropriate for a court

25 intervention.

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1 But this result is very positive one. It makes a lot

2 of sense to me. I think there was originally some talk about

3 release to a residential reentry center and then, turn around,

4 released to home, maybe, whatever. I think that the home

5 confinement policy, which is a policy, I think it's fair to

6 say, a policy of the Department of Justice, as well, and I

7 agree with that policy where appropriate. Sometimes there

8 may be some disagreement about when it is appropriate, but I

9 fully support that BOP, and this determination, I think, is

10 correct.

11 How we get to implementation, we will find out. I am

12 sure you all will be working on that before we get to May 27

13 and have a plan in place. If you do, by the way -- not if you

14 do, I would ask you, both the government and the defense to

15 perhaps submit a joint letter as we get closer to 5/27, what

16 your understanding is, and hopefully by then you will have the

17 same understanding of the administrative mechanism that is

18 going to unfold. Does that make sense?

19 MS. SHROFF: Yes, your Honor.

20 So I looked it up a little bit, and it seems that

21 probation would normally kick in when the period of home

22 confinement is over. But I am assuming that at the end of my

23 colloquy this court will order that probation start a courtesy

24 supervision upon the date of release, and I can pass that along

25 to probation. And probation seems to have been generous with

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1 their time and has started with a courtesy supervision in light

2 of other judges releasing people and skipping the period in an

3 RRC. So we can explore that with Probation.

4 THE COURT: Yes.

5 MS. SHROFF: I can call them and ask them about it

6 will.

7 THE COURT: I think I am going to wait even on that in

8 terms of any kind of directive. But if we could come up with a

9 date -- or maybe you two could talk briefly -- when a joint

10 letter should be submitted in relation to 5/27, when you think

11 you will have a clearer understanding collectively of what the

12 BOP is planning to do and how it is planning to implement its

13 decision.

14 So let's see. Would it be May 20? Is that, you

15 think, a realistic date for such a joint letter?

16 MS. SHROFF: Yes, your Honor, that's a week from

17 today, so I think May 20 is fine.

18 THE COURT: Ms. Hanft, is that okay with you?

19 MS. HANFT: Yes, your Honor. That's fine.

20 And, your Honor, in view of the fact that the

21 government has now been copying the defense on all

22 communications with the BOP, the government would ask that the

23 government be copied on these communications with Probation so

24 that we can understand, along with the defense, what the

25 proposals are here and can write this joint letter without too

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1 much difficulty in communication.

2 MS. SHROFF: Of course. I'm happy to copy Ms. Hanft.

3 MS. HANFT: Thank you, Ms. Shroff.

4 THE COURT: Ms. Hanft, when this case, this matter,

5 you know, I won't say over, but when we get over the hurdle of

6 5/27, I would like to talk through further with both the

7 government and the defense the idea about copying all of these

8 letters and including everybody. We are doing that here. It

9 makes a lot of sense. Whether it always makes sense, I'm not

10 sure, not only whether it makes sense, but whether it is always

11 appropriate. That is something I would like you to give some

12 thought to in the next week or two, bearing in mind that --

13 well, whatever considerations you want to bear in mind. I just

14 don't know. So we are doing it in this case. It seems to make

15 perfect sense to me, and we will continue to do it until we

16 don't, if we don't. But whether it is an overall policy or

17 not, give some thought, and I would like to hear your

18 conclusions at some point.

19 MS. SHROFF: And, your Honor, since Ms. Hanft has

20 carried the burden so far, I am happy to carry the burden with

21 Probation and copy her on all correspondence so that we can

22 come up with a good joint letter.

23 THE COURT: Okay. That's great. That's very help.

24 What day of the week is 5/27?

25 MS. SHROFF: 5/27 is a Wednesday. It is actually two

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1 weeks. It is the 13th, which is today; the 20th when you have

2 the letter due; and 27th would be the release date. It's a

3 week apart, all of them.

4 THE COURT: And 5/27 is a Wednesday?

5 MS. SHROFF: Yes, your Honor.

6 MS. HANFT: Yes, your Honor.

7 THE COURT: So when do you want to have a conference?

8 On that day, the next day, or what?

9 MS. SHROFF: Your Honor, on May 27, can we just shoot

10 the court an e-mail -- would that be okay? -- to let you know

11 if he is released or not? If he is released, then we don't

12 need a conference the very next day. But that's up to the

13 court, whichever day you want.

14 THE COURT: So, yes, that works for me. Let me give

15 you a date of 5/28 just as a placeholder --

16 MS. SHROFF: Okay.

17 THE COURT: -- and why don't we say 9:30. What is

18 that, a Thursday?

19 MS. SHROFF: Yes, your Honor.

20 THE COURT: And on --

21 MS. HANFT: Your Honor, I would respectfully ask, if

22 we have a conference that day, it be in the later afternoon. I

23 have a Second Circuit --

24 THE COURT: Okay.

25 MS. HANFT: -- oral argument on Thursday, the 28th.

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1 THE COURT: Okay. What time would you like? 2:30?

2 MS. HANFT: I mean -- yes. That's fine, your Honor.

3 Any time after, to be safe, 12:30 p.m., although I think I will

4 be done much earlier than that.

5 THE COURT: Let's say 2:30.

6 The e-mail can tell me whether the conference is still

7 needed or whether we can cancel it. How's that?

8 MS. SHROFF: Sure.

9 THE COURT: So that's a good outcome, and unless

10 anybody has anything to add, I think we could be adjourned for

11 today. I thank you all for being so helpful, and I will talk

12 to you soon.

13 MS. SHROFF: Thank you, your Honor.

14 MR. DiCHIARA: Thank you, Judge.

15 MS. HANFT: Thank you, your Honor.

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