Case 1:15-cr-00171-ALC Document 56 Filed 02/17/16 Page 1 of 2

U.S. Department of Justice

[Type text]
United States Attorney
Southern District of New York
The Silvio J. Mollo Building
One Saint Andrews Plaza
New York, New York 10007

February 17, 2016

BY ECF AND E-MAIL
The Honorable Andrew L. Carter, Jr.
United States District Judge
Southern District of New York
40 Foley Square, Room 435
New York, New York 10007
Re:

United States v. Edward Durante,

S4 15 Cr. 171 (ALC)

Dear Judge Carter:

Pursuant to the Courts request at the conference on February 11, 2016, the
Government respectfully writes to provide a joint status update in connection with the
defendants efforts to obtain counsel in this matter prior to the next conference on February 19,
2016.
On Monday, February 15, 2016, Lee Ginsberg, Esq., contacted the Government
for a third time related to his potential representation of the defendant. Mr. Ginsberg stated that
it was his understanding that the defendant wanted to retain him but that the defendant did not
have immediate access to the funds necessary to do so. Mr. Ginsberg believes that the defendant
will gain access to the necessary funds but Mr. Ginsberg does not know when that will occur.
Earlier today, Christopher Greene, Esq., of the Federal Defenders of New York
wrote an email to the Government that stated as follows:
We last spoke with Mr. Durante yesterday afternoon at the MCC
and have the following update: Mr. Durante has had further
communications with a potential counsel, and we understand that
the counsel has also spoken with [the Government] since our last
conference. At this time, Mr. Durante will seek to have the
Federal Defenders of New York appointed as counsel and will be
making an application to that effect.
Mr. Greene further informed the Government that the defendant would make this application ex
parte in advance of the conference on February 19, 2016.

Case 1:15-cr-00171-ALC Document 56 Filed 02/17/16 Page 2 of 2

The Hon. Andrew L. Carter, Jr.
February 17, 2016
Page 2
In a letter dated January 26, 2016, the Government noted that the Second Circuit
has rejected efforts by a defendant to proceed ex parte in making such an application to the
Court, reasoning that facts are best determined in adversary proceedings, the importance of
which process outweighs any speculative possibility of inadequate protection of defendants
fifth amendment rights, particularly where those rights are otherwise protected by limitations
imposed on the governments use of information supplied by a defendant in aid of his or her
application for appointed counsel. See United States v. Harris, 707 F.2d 653, 654, 659, 662-63
(2d Cir. 1983); United States v. Hilsen, 03 Cr. 919 (RWS), 2004 WL 2284388 at *3, *8
(S.D.N.Y. Oct. 12, 2004). Moreover, the Revised Plan for Furnishing Representation Pursuant
to the Criminal Justice Act, as adopted on May 21, 2012 (the CJA Plan) also requires that such
an application be made in open court. CJA Plan VI(C). At a conference on January 29, 2016,
the Court indicated to the parties it believed that such a proceeding should occur in open court.
Accordingly, the Government objects to the Federal Defenders proposal for the
defendant to apply for appointed counsel in an ex parte proceeding. Instead, the defendant must
establish his eligibility for appointed counsel either 1) by affidavit sworn to before a district
judge, magistrate judge, court clerk, deputy clerk, or notary public; or 2) under oath in open
court before a district judge or magistrate judge. CJA Plan VI(C) (emphasis added). If the
defendant does not complete the standard form affidavit, the Courts inquiry in open court should
begin with an investigation of the applicants assets, liabilities, income and obligations and
expand as circumstances dictate. See United States v. Parker, 439 F.3d 81, 109 (2d Cir. 2006);
United States v. Rubinson, 543 F.2d 951, 963-64 (2d Cir. 1976); United States v. Barcelon, 833
F.2d 894, 897 (10th Cir. 1987); United States v. Binder, 794 F.2d 1195, 1202 (7th Cir. 1986).

Respectfully submitted,
PREET BHARARA
United States Attorney
By:

/s/
Daniel S. Goldman
Andrea M. Griswold
Assistant United States Attorneys
(212) 637-2289/1205