1 D7V3STEC 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 UNITED STATES OF AMERICA, 3 4 v. 02 CR 395 (JGK) 4 5 LYNNE STEWART, 5 6 Defendant. 6 7 ------------------------------x 7 8 LYNNE STEWART, 8 9 Plaintiff, 9 10 v. 13 CV 5279 (JGK) 10 11 UNITED STATES OF AMERICA, 11 12 Defendant. 12 13 ------------------------------x 13 14 New York, N.Y. 14 July 31, 2013 15 3:45 p.m. 15 16 16 Before: 17 17 HON. JOHN G. KOELTL, 18 18 District Judge 19 19 20 APPEARANCES 20 21 PREET BHARARA 21 United States Attorney for the 22 Southern District of New York 22 ANDREW DEMBER 23 MICHAEL MAIMIN 23 Assistant United States Attorneys 24 24 JILL R. SHELLOW 25 ROBERT BOYLE 25 Attorneys for Defendant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 D7V3STEC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 D7V3STEC 1 (In open court; defendant not present) 2 THE DEPUTY CLERK: United States of America v. Lynne 3 Stewart and Lynne Stewart v. The United States of America. 4 Will all parties please state who they are for the record. 5 MR. DEMBER: For the government, Andrew Dember. With 6 me, your Honor, is Assistant United States Attorney Michael 7 Maimin. Good afternoon, your Honor. 8 THE COURT: Good afternoon. 9 MS. SHELLOW: Good afternoon, your Honor. Jill 10 Shellow for Lynne Stewart, both the petitioner and the 11 defendant, depending on the docket number. And with me is 12 Robert Boyle. 13 THE COURT: Good afternoon. 14 Ms. Shellow asked for this conference. I should ask 15 at the outset, does Ms. Stewart waive her presence? I don't 16 believe it is necessary because this is going to deal with 17 matters of procedure. 18 MS. SHELLOW: She does for purposes of today's 19 proceedings. And I believe you are correct that her presence 20 is not necessary. 21 THE COURT: Okay. 22 MS. SHELLOW: You're right, I asked for the 23 conference. 24 THE COURT: There is an order to show cause which 25 essentially asks for an expedited consideration of a petition SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 D7V3STEC 1 pursuant to 28 U.S.C. Section 2255 and 18 U.S.C. Section 3582. 2 Okay. I'm happy to set a schedule. 3 MS. SHELLOW: I would ask your Honor to set an 4 expedited briefing schedule. 5 THE COURT: Okay. I've read the papers, and I'm 6 prepared to hear you next week. I'll listen to the government, 7 and I should flag a couple of things. 8 First, it certainly would be in Ms. Stewart's interest 9 to do whatever she can and whatever her lawyers can to get the 10 additional PET scan. Is that scheduled? 11 MS. SHELLOW: Your Honor, it is not clear to me, but I 12 believe it may have taken place yesterday. The bureau of 13 prisons will not tell us in advance when she is being 14 transported out of the facility. We have certainly requested 15 that it be done as expeditiously as possible, and I got an 16 ambiguous e-mail. So I believe it is possible it occurred 17 yesterday. 18 THE COURT: A second issue that arises from the papers 19 is there are some complaints in the papers about the promptness 20 with which medical treatment has been provided. 21 As a matter of course, whether it is in a case where a 22 defendant is still before me because the defendant hasn't yet 23 been sentenced, or even for a defendant who has been sentenced 24 and who files a complaint about medical treatment, I think the 25 bureau of prisons wants to be informed of that. And I ask the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 D7V3STEC 1 government to pass the complaint along to the bureau of prisons 2 and to get a report back. Because if there is a complaint 3 that, for example, a test was delayed for six weeks, there 4 should be some explanation. 5 These are requests which the bureau of prisons would 6 like to hear about, first; and secondly, the Court has concern 7 with respect to the defendants who are both before it and who 8 have been sentenced. 9 So, I would think that the government should send a 10 copy of the papers to the bureau of prisons, because there are 11 some complaints about the promptness of various tests, and ask 12 the bureau of prisons to report back to the Court. 13 The next couple of issues I raise with you are legal 14 matters on the papers. First, this is styled a 2255. There 15 are of course some downsides to raising a 2255, because there 16 are limits on a 2255. I point that out to you. It's up to the 17 defendant. But the defendant should be clear that there are 18 limits on 2255s, and that raise questions if there were ever a 19 second 2255 as to whether that's a successive 2255, as to which 20 there would have to be permission to file. 21 The next issue is the petition is also classified 22 under 3582, and there are certain cases that say that a 23 prerequisite to relief under 3582 is a motion by the bureau of 24 prisons which seeks relief. Obviously from the papers, no such 25 motion has been made. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 D7V3STEC 1 I realize in the papers that the defendant indicates 2 that she's going to make another application to the bureau of 3 prisons. I can only say that that should be done with all 4 expedition. I realize you're waiting for the results of the 5 PET scan, but certainly that should be done. 6 So, would the government like to say anything with 7 respect to the papers? 8 MR. DEMBER: Your Honor, I have much to say about the 9 papers, but perhaps I should do it in writing. 10 Frankly, your Honor, from our reading of the papers 11 and from reading about a dozen cases since I received it the 12 other day, frankly, there seems to be no authority for this 13 motion to be brought before this Court to begin with. 14 Every circuit that has considered the issue has said 15 that a decision whether the bureau of prisons makes this motion 16 or not is totally their discretion, and is unreviewable by a 17 court. So, that aspect of this motion seems to have no merit. 18 There seems to be no other legal basis for it. 19 My understanding of the case law, your Honor, is there 20 has to be some statutory basis to modify or change a sentence 21 that has already been imposed, and there is none here. And the 22 defense doesn't cite any. 23 I would put all that in my response, your Honor. 24 Perhaps it is best to lay out all our arguments in the 25 response. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 D7V3STEC 1 I was going to ask for two weeks, your Honor, but I 2 think I can do this roughly in about a week. I don't want to 3 have to come back to the Court to ask for any additional time. 4 I think I can respond within a week to this motion. 5 THE COURT: I would really, if at all possible, I 6 would like to hear the motion next Thursday. The government's 7 already done a reasonable amount of research. I would really 8 like to get government papers on -- I'd like to get them 9 sooner, actually, but Tuesday, August 6. And any reply from 10 the defendant or plaintiff August 7. And I'll hear you on 11 Thursday, August 8, at 2:30 p.m. 12 Mr. Dember, if you would pass the papers on to the 13 bureau of prisons along with my request. 14 MR. DEMBER: I will do that, your Honor. 15 THE COURT: Ms. Shellow. 16 MS. SHELLOW: One of the things that has hampered us 17 to date is having access to the medical records coming out of 18 the facility. If your Honor would please so order a subpoena 19 so that when those records are produced in connection with the 20 PET scan or anything else between now and the 8th, they are 21 promptly provided to the Court and to the parties. We would 22 appreciate it. 23 I don't know how else to get the bureau of prisons -- 24 all of the necessary releases have been signed so that counsel 25 has access to those documents. But getting them has been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 D7V3STEC 1 exceptionally difficult. 2 THE COURT: Mr. Dember. 3 MR. DEMBER: Your Honor, if there is no basis for this 4 motion to begin with, there is no basis for Stewart to have 5 these records or counsel to have these records. They will have 6 no relevance to this proceeding. 7 I will check with the bureau of prisons, your Honor, 8 as to what's going on. I think from Ms. Shellow's papers, 9 she's made a Freedom of Information request. I will check with 10 them. I will see if they have any objection to providing them. 11 THE COURT: No. There are two sets of papers that are 12 being talked about, I think. First are the deliberations at 13 the bureau of prisons level, as to which there is reference to 14 a Freedom of Information Act. The bureau of prisons saying 15 you've got to get those records through a Freedom of 16 Information Act. 17 The second is simply the medical records from the 18 facility for Ms. Stewart. I don't know what the regulations 19 are with respect to medical records of the bureau of prisons. 20 To the extent that it is possible for an inmate to simply sign 21 a release and say give my medical records over, and Ms. Shellow 22 says that such a release has been signed, and if that's 23 consistent with the regulations, then by all means ask the 24 bureau of prisons to produce them promptly. 25 MR. DEMBER: I will, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 D7V3STEC 1 THE COURT: I would have thought that if an inmate 2 wants to get medical records looked at by an independent 3 doctor, the inmate should have the right to do that. Whether 4 that's true or not, I don't know. 5 MR. DEMBER: I don't know. 6 THE COURT: See if they can be produced promptly. 7 MR. DEMBER: I will do that, your Honor. 8 THE COURT: Okay. 9 MS. SHELLOW: Thank you, your Honor. 10 THE COURT: Anything else? 11 MR. DEMBER: No, your Honor. 12 MS. SHELLOW: No, your Honor. 13 THE COURT: All right. Good afternoon, all. 14 o0o 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300