His "brother the lawyer" was never confused about the meaning.
Because he's a lawyer. Obfuscation is the name of the game, along with deliberate obtuseness.
Case 1:18-cr-00602-JMF — Document 108 — Filed 03/20/24 — Page 1 of 13
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
-v-
MICHAEL COHEN,
Defendant.
18-CR-602 (JMF)
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
Defendant Michael Cohen pleaded guilty to evading income taxes, lying to banks and Congress, and violating campaign finance laws. See ECF No. 23.1 On December 12, 2018, citing this “veritable smorgasbord of fraudulent conduct,” ECF No. 31, at 31, the Honorable William H. Pauley sentenced Cohen principally to thirty-six months’ imprisonment, followed by three years’ supervised release. See ECF No. 29; see also 18-CR-850, ECF No. 16. Since that time, Cohen has applied multiple times for a reduction of his sentence, each time without success. First, in December 2019, Cohen moved for a reduction of his term of imprisonment pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. See ECF No. 51. Judge Pauley denied that motion in March 2020. See ECF No. 72. Between July 2022 and May 2023, after the case was reassigned to the undersigned (due to the death of Judge Pauley), Cohen filed three motions for early termination of his term of supervised release (which is due to expire in November of this year). See ECF Nos. 77, 81, 84. The Court denied all three. See ECF Nos. 80, 83, 87. In this Opinion, the Court turns to a fourth motion for early termination of Cohen’s supervised release and the question of whether sanctions are warranted for that motion’s citation to three cases that do not exist.
1 Unless otherwise noted, all record citations are to 18-CR-602 (JMF).
Case 1:18-cr-00602-JMF — Document 108 — Filed 03/20/24 — Page 2 of 13
BACKGROUND
The relevant background begins with the Court’s denial of Cohen’s third motion for early termination. In opposing that motion, the Government alerted the Court to statements that Cohen had made in a then-recent book and on television. Specifically, “Cohen falsely wrote in a book he authored that he ‘did not engage in tax fraud,’ that the tax charges were ‘all 100 percent inaccurate,’ and that he was ‘threatened’ by prosecutors to plead guilty.” ECF No. 86, at 3 (quoting MICHAEL COHEN, REVENGE 54 (2022)). And in an “attempt to distance himself from his guilty plea to making false statements to a financial institution about tax medallion liabilities, Cohen stated on television, ‘first and foremost, there was no fraud in the medallions, I don’t know even what he’s talking about.’” Id. (citation omitted) (quoting ‘Panic’: Trump melting down over imminent ‘arrest’ says star witness Cohen, MSNBC: THE BEAT WITH ARI MELBER (Mar. 20, 2023), https://shorturl.at/cvDI8). The Court denied Cohen’s motion “substantially for the reasons set forth in the Government’s letter” and singled out the statements from Cohen’s book and television appearance. ECF No. 87, at 4 (endorsement). These statements, the Court stated, “suggest that a reduction of Defendant’s supervised release term would not serve the purposes [of sentencing] incorporated by reference in 18 U.S.C. § 3583(e)” — the statute governing termination of supervised release — “including deterrence, rehabilitation, or proportionality.” Id. (citing United States v. Lussier, 104 F.3d 32, 35 (2d Cir. 1997)).
Undeterred, Cohen — through his counsel of record, David M. Schwartz — filed yet another motion seeking early termination of supervised release on November 29, 2023. See ECF No. 88 (“Def.’s Motion”). In his motion, Schwartz argued that there had “been a substantial change in circumstances” since the Court’s most recent denial, namely Cohen’s testimony “for two straight days in the case of the State of New York v. Donald J. Trump.” Id. at 1. Schwartz asserted that Cohen had “endured two days of grueling cross examination” and that his testimony had “been widely lauded and publicized.” Id. Cohen’s “willingness to come forward and
Case 1:18-cr-00602-JMF — Document 108 — Filed 03/20/24 — Page 3 of 13
provide truthful accounts of his experiences,” Schwartz argued, “demonstrates an exceptional level of remorse and a commitment to upholding the law that cannot be denied by this Court or the United States Attorney General’s [sic] Office.” Id.
In support of his motion, Schwartz cited and described three “examples” of decisions granting early termination of supervised release that were allegedly affirmed by the Second Circuit. See id. at 2-3 (citing United States v. Figueroa-Florez, 64 F.4th 223 (2d Cir. 2022); United States v. Ortiz (No. 21-3391), 2022 WL 4424741 (2d Cir. Oct. 11, 2022); and United States v. Amato, 2022 WL 1669877 (2d Cir. May 10, 2022)). There was only one problem: The cases do not exist. Although the Government failed to point that fact out in its opposition to Cohen’s motion, see ECF No. 90 (“Gov’t Opp’n”), E. Danya Perry — who entered a notice of appearance on Cohen’s behalf following the Government’s submission, see ECF No. 91 — disclosed in a reply that she had been “unable to verify” the citations in Schwartz’s filing. ECF No. 95 (“Def.’s Reply”), at 3 n.6. On December 12, 2023, the Court entered an Order to Show Cause directing Schwartz to show cause in writing “why he should not be sanctioned pursuant to (1) Rule 11(b)(2) & (c) of the Federal Rules of Civil Procedure, (2) 28 U.S.C. § 1927, and (3) the inherent power of the Court for citing non-existent cases to the Court.” ECF No. 96, at 2. The Court directed that Schwartz provide “a thorough explanation of how the motion came to cite cases that do not exist and what role, if any, Mr. Cohen played in drafting or reviewing the motion before it was filed.” Id. The Court reserved judgment on the motion itself. See id.
Schwartz (aided by his own counsel) and Cohen (aided by Perry) both responded to the Court’s Order to Show Cause. See ECF Nos. 103-05. With one exception discussed below, they tell the same basic story. In early November 2023, Schwartz sent a draft of what would become
Case 1:18-cr-00602-JMF — Document 108 — Filed 03/20/24 — Page 4 of 13
the November 29, 2023 motion to Cohen. See Schwartz Decl. ¶ 4; Cohen Decl. ¶ 12.2 Cohen asked Perry (who had not yet entered an appearance in this case) to provide feedback on the draft, which she did. Schwartz Decl. ¶¶ 5-7; Cohen Decl. ¶ 12. One comment, which Cohen passed along to Schwartz, was that the motion should cite a few cases granting early termination. Schwartz Decl. ¶ 6; ECF No. 106 (“Schwartz Reply Decl.”), ¶ 9; Cohen Decl. ¶ 13. Schwartz adopted what he understood to be Perry’s suggestions and sent subsequent drafts back to Cohen. See Schwartz Decl. ¶ 8. On November 25, 2023, Cohen then sent three emails to Schwartz with the cases in question and summaries of the cases. See id. ¶ 9; Cohen Decl. ¶ 15. Cohen had obtained the cases and summaries from Google Bard, which he “did not realize . . . was a generative text service that, like Chat-GPT, could show citations and descriptions that looked real but actually were not. Instead, [he had] understood it to be a super-charged search engine . . . .” Cohen Decl. ¶ 20. According to Cohen, he did not “have access to Westlaw or other standard resources for confirming the details of cases” and “trusted Mr. Schwartz and his team to vet [his] suggested additions before incorporating them” into what became the motion. Id.
2 “Schwartz Decl.” refers to Schwartz’s declaration that is part of ECF No. 103 and “Cohen Decl.” refers to Cohen’s declaration that is part of ECF No. 104.
Case 1:18-cr-00602-JMF — Document 108 — Filed 03/20/24 — Page 5 of 13
That trust proved unfounded. Although Cohen’s November 25, 2023 emails made no reference to Perry, Schwartz “believed” that the cases “had been found by Ms. Perry” given the earlier back and forth. Schwartz Decl. ¶ 9; see Schwartz Reply Decl. ¶ 2. “[B]ecause of Ms. Perry’s reputation” as “a renowned and skilled trial lawyer,” Schwartz “did not independently review the cases.” Schwartz Decl. ¶¶ 5, 10. He notes that he “never contemplated that the cases cited were ‘non-existent,’” id. ¶ 13, that their inclusion in his motion was an “honest” and “unfortunate mistake[],” Schwartz Reply Decl. ¶¶ 3, 23, and that he “had no intention to deceive the Court,” id. ¶ 3. The first Schwartz learned of the problem was when the Court issued its Order to Show Cause on December 12, 2023; he then spoke to Perry’s colleague, who informed him that Cohen, not Perry, had been the source of the cases. See Schwartz Decl. ¶ 19; see Schwartz Reply Decl. ¶ 16. Schwartz professes that he “would have researched” the cases had he “believed that Mr. Cohen” was their source. Schwartz Decl. ¶ 20. He acknowledges that he “bear[s] the responsibility for” the “submission” and that “the inaccuracies” in it were “completely unacceptable,” and he “sincerely apologize[s] . . . for not checking [the] cases personally before submitting them.” Id. ¶¶ 21-22; see Schwartz Reply Decl. ¶ 2, 21-22.
As noted, Schwartz’s and Cohen’s recollections differ in one respect. Schwartz recalls that Cohen had, before sending him the cases on November 25, 2023, “communicated to [him] that cases would be provided by Ms. Perry,” Schwartz Decl. ¶ 9; Schwartz Reply Decl. ¶ 12, which was one reason he believed the cases came from Perry. Cohen denies that he said anything of the sort to Schwartz, although he does not dispute Schwartz’s claim that Schwartz mistakenly believed in good faith that the cases had come from Perry. Cohen Decl. ¶¶ 5-6, 14, 17-18. In the Court’s view, this discrepancy is ultimately inconsequential. At most, Cohen told Schwartz on some unspecified date that Perry would later provide “cases”; Schwartz does not suggest, and the record does not show, that Cohen identified Perry as the source of the problematic cases Cohen provided on November 25, 2023. Moreover, even if Cohen did not say anything to Schwartz to suggest that Perry would provide cases, Perry’s comments on the initial draft that Cohen forwarded to Schwartz provided a good faith basis for Schwartz’s belief that Perry was the source. All of that is to say, the Court credits Schwartz’s testimony that he genuinely, but mistakenly, believed that the cases had come from Perry; that he did not independently review the cases based on that belief; that he would have researched the cases had he known that Cohen was the source; and that he did not intend to deceive the Court.
In light of the foregoing submissions, the record is complete and two discrete issues are thus ripe for the Court’s decision: first, whether Cohen’s supervised release term should be
Case 1:18-cr-00602-JMF — Document 108 — Filed 03/20/24 — Page 6 of 13
terminated early; and second, whether sanctions should be imposed in connection with the citation to non-existent cases. The Court will address each issue in turn.
COHEN’S MOTION FOR EARLY TERMINATION OF SUPERVISED RELEASE
The first issue can be addressed relatively swiftly. Pursuant to 18 U.S.C. § 3583(e)(1), a court “may terminate a term of supervised release . . . at any time after the expiration of one year of supervised release” if, after revisiting certain factors set forth in 18 U.S.C. § 3553(a), “it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice.” In particular, “the Court is required to consider the factors in Section 3553(a) which bear on deterrence, public safety, rehabilitation, proportionality, and consistency.” United States v. Warren, No. 21-CR-753 (LJL), 2024 WL 497690, at *1 (S.D.N.Y. Feb. 8, 2024) (cleaned up); accord United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997). Significantly, early termination of supervised release “is not warranted as a matter of course.” United States v. Wheeler, No. 20-CR-492 (GHW), 2023 WL 4561591, at *1 (S.D.N.Y. July 17, 2023) (internal quotation marks omitted). To the contrary, it is only “occasionally” justified due to “changed circumstances,” such as “exceptionally good behavior by the defendant,” that “render a previously imposed term or condition of release either too harsh or inappropriately tailored to serve the general punishment goals of section 3553(a).” Lussier, 104 F.3d at 36.
In light of the relevant Section 3553(a) factors, Cohen’s latest motion for early termination is denied. Cohen’s principal basis for his renewed motion was his October 2023 testimony in State of New York v. Donald J. Trump. As the Government notes, however, that testimony actually provides “reason to deny his motion, not [to] grant it.” Gov’t Opp’n 2. Specifically, Cohen repeatedly and unambiguously testified at the state court trial that he was not
Case 1:18-cr-00602-JMF — Document 108 — Filed 03/20/24 — Page 7 of 13
guilty of tax evasion and that he had lied under oath to Judge Pauley when he pleaded guilty to those crimes. See Tr. 2188-90, 2317, 2433, 2437.2F3 To cite just a few examples:
Q: Did you lie to Judge Pauley when you said that you were guilty of the counts that you said under oath that you were guilty of? Did you lie to Judge Pauley?
A: Yes.4
* * * *
Q: But you earlier testified today that you omitted, you didn’t evade [taxes], isn’t that right?
A: I did say that.
Q: Right. So you lied when you said that you evaded taxes to a judge under oath; is that correct?
A: Yes.5
* * * *
Q: And in response to those questions [from Judge Pauley], you lied to him; true?
A: That’s true.6
* * * *
Q: So, sir, you lied at the time — you lied more than once in federal court,
correct?
A: Correct.
Q: When the stakes affected you personally, right?
A: Correct.
Q: And you misled a federal judge?
3 “Tr.” refers to the transcript, which can be found at ECF Nos. 88-1 and 88-2.
4 Id. at 2288.
5 Id. at 2289-90.
6 Id. at 2433.
Case 1:18-cr-00602-JMF — Document 108 — Filed 03/20/24 — Page 8 of 13
A: Yes.7
This testimony is more troubling than the statements that Cohen had previously made in his book and on television — statements that the Court had specifically cited in denying Cohen’s third motion for early termination of supervised release, see ECF No. 87, at 4 (endorsement) — because it was given under oath. It gives rise to two possibilities: one, Cohen committed perjury when he pleaded guilty before Judge Pauley or, two, Cohen committed perjury in his October 2023 testimony. Either way, it is perverse to cite the testimony, as Schwartz did, as evidence of Cohen’s “commitment to upholding the law.” Def.’s Motion 1. And either way, it would undermine, rather than serve, the purposes of sentencing incorporated by reference in Section 3583(e), including deterrence, rehabilitation, or proportionality, to terminate Cohen’s supervised release before its natural expiration in November of this year. At a minimum, Cohen’s ongoing and escalating efforts to walk away from his prior acceptance of responsibility for his crimes are manifest evidence of the ongoing need for specific deterrence.8
In her reply on Cohen’s behalf, Perry tries valiantly to paint his testimony in a more positive light. She contends that the Government — which emphasized Cohen’s testimony in its opposition, see Gov’t Opp’n 2-3 — “mischaracteriz[es]” and “selective[ly]” quotes from Cohen’s testimony. Def.’s Reply 1-2. She insists that Cohen’s testimony “actually reflect[s] something very different from what the Government argues,” namely an attempt “to articulate his belief that such conduct should not have been the basis for a criminal prosecution.” Id. at 1. But these efforts to turn a sow’s ear into a silk purse fall flat. Cohen’s testimony was not, as
7 Id. at 2437.
8 To be clear, the Court does not rely in any way on the citation to non-existent cases in Cohen’s motion as a basis for denying the motion. Among other things, and as discussed below, the Court agrees that the primary fault for that problem lies with Schwartz.
Case 1:18-cr-00602-JMF — Document 108 — Filed 03/20/24 — Page 9 of 13
Perry contends, a “clumsy” or “poorly worded” attempt to argue that, while he committed the crimes to which he pleaded guilty, the Government abused its prosecutorial discretion in charging those crimes. Id. at 1-2. To the contrary, he unambiguously testified that he “didn’t” commit tax evasion and that he “lied” to Judge Pauley when he said that he had. Tr. 2289-90. Moreover, when given multiple opportunities to retreat from or clarify that testimony later, he stuck to his guns. See id. at 2433, 2437. Perhaps recognizing that the transcript belies her zealous efforts at spin, Perry falls back on an alternative argument: that Cohen’s October 2023 testimony, if true, “would simply mean that Mr. Cohen, like countless other defendants before him and since, felt compelled to agree to a plea deal under severe pressure.” Def.’s Reply 2. Cohen is certainly free to make that claim publicly, but he cannot do so and simultaneously ask the Court to shorten his sentence on the ground that he has demonstrated “an exceptional level of remorse and a commitment to upholding the law.” Def.’s Motion 1.
In short, there was “a substantial change in circumstances” between Cohen’s third failed application and this, his fourth. Id. at 1. But that change — his October 2023 testimony, which was either perjurious or confirms that he committed perjury before this Court — makes plain that Cohen should be required to serve out the remainder of his supervised release term. Accordingly, his motion for early termination of supervised release is DENIED.
WHETHER SANCTIONS ARE WARRANTED
[...]
CONCLUSION
For the foregoing reasons, the Court denies Cohen’s latest motion for early termination of his supervised release and declines to impose sanctions for the citation in that motion to non-existent cases. The Clerk of Court is directed to terminate ECF No. 88.
SO ORDERED.
Dated: March 20, 2024
New York, New York
__________________________________
JESSE M. FURMAN
United States District Judge