Filed Reply Brief USA v. Robert S. Kelly
Filed Reply Brief USA v. Robert S. Kelly
Filed Reply Brief USA v. Robert S. Kelly
__________________________________________________________________
__________________________________________________________________
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_________________________________________________
UNITED STATES OF AMERICA,
Appellee,
-against-
ROBERT S. KELLY,
Defendant-Appellant
_________________________________________________
THOMAS A. FARINELLA,
Counsel
__________________________________________________________________
__________________________________________________________________
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TABLE OF CONTENTS
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
III. The District Court Clearly Erred in Finding That Mr. Kelly
Was a Danger to the Community and a Risk of Flight Because
He Met His Burden by Producing Credible Evidence that
Rebutted The Government ’s Presumptions. . . . . . . . . . . . . .14
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
i
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TABLE OF AUTHORITIES
CASES
Page(s)
United States v. Avenatti, C.A. No. 19-061-JVS
(9th Cir. Mar. 6 2020) ......................................................................... 18
United States v Chandler
No. 1:19-CR-867 (PAC), 2020 WL 1528120 (S.D.N.Y. Mar. 31, 2020)
............................................................................................................ 2, 7
United States v El-Gabrowny,
35 F3d 63 (2d Cir 1994) ...................................................................... 17
United States v Friedman,
837 F2d 48 (2d Cir 1988) .................................................................... 18
United States v Hammond,
204 F Supp 2d 1157 (E.D. Wis. 2002) ................................................ 14
United States v Jimenez,
No. 20-CR-122(LTS), 2020 WL 1974220 (S.D.N.Y. Apr. 24, 2020) .... 7
United States v Kennedy, E.D. MI.,
No. 18-20315, 2020 WL 1528120 (S.D.N.Y. Mar. 31, ?YEAR?) .......... 3
United States v Khashoggi,
717 F Supp 1048 (S.D.N.Y. 1989) ...................................................... 17
United States v Mercado,
No. 19-CR-906 (JMF), 2020 WL 2765879 (S.D.N.Y. May 28, 2020) 7-8
United States v Mercedes,
254 F3d 433 (2d Cir 2001) .................................................................. 14
United States v Peralta,
No. 19-CR-818 (PGG), 2020 WL 2527355 (S.D.N.Y. May 18, 2020) .. 7
United States v Salerno,
481 US 739 (1987) .......................................................................... 2, 17
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iii
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_____________________________________________________________
_____________________________________________________________
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_________________________________________________
No. 20-1720
_________________________________________________
Appellee,
-against-
ROBERT S. KELLY,
Defendant-Appellant.
_________________________________________________
APPEAL FROM A DETENTION ORDER
OF THE UNITED STATES DISTRICT COURT
FOR EASTERN DISTRICT OF NEW YORK
__________________________________________________________________
REPLY MEMORANDUM OF LAW IN SUPPORT OF
ROBERT S. KELLY’S MOTION FOR RELEASE FROM
PRETRIAL DETENTION
__________________________________________________________________
ARGUMENT
I. The District Court Clearly Erred in Denying Mr.
Kelly’s Temporary Release Because He Is Eligible
Under 3142(i)
Fed. Bureau of Prisons, 954 F.3d118, 134 (2d Cir. 2020); United States v.
Salerno, 481 U.S. 739, 755, (1987)(“In our society liberty is the norm, and
he has his day in court; and that, no matter how damning the allegations
Mr. Kelly’s case. Instead, he is now facing a September 2020 trial date,
because, under Section 3142(i), Mr. Kelly clearly met the standard for
release. The District Court ruled, “I have found that the defendant has
2
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not presented compelling reasons for his release under § 3142(i) in part
illness or serious injuries.” (Ex. H at 7-8). The District Court was plainly
should be applied in Mr. Kelly’s case, given the fact that the COVID-19
pandemic has had an direct and compelling impact on Mr. Kelly’s ability
. Based on the District Court’s ruling even if Mr. Kelly was not
3
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prepare and consult with defense counsel for these proceedings.” Id.
generally not, as the trial court did here, required that a detainee actually
for the preparation of the person’s defense [or for another compelling
reason]. Accordingly, this Court does not even need to reach the issue of
clearly s necessary for the preparation of his defense. See, e.g., United
4
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States v. Thornton, 787 F.2d 594, 594 (6th Cir. 1986) (suggesting that a
even after a prior order holding that the detainee was a flight risk or a
Those rulings speak directly to the case at bar because Mr. Kelly
needs to prepare a defense for his two federal criminal cases, in this
the trial court did not even otherwise discuss or address Mr. Kelly’s
ability to prepare for trial and the impact of COVID-19 in its last denial
5
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impossible for defense counsel to prepare with Mr. Kelly for that
impending trial if he remains in custody. Add to the mix the fact that Mr.
preparation.
that his constitutional right to have access to his counsel and to assist in
his own defense has not been (and will not continue to be) reduced is
“without merit.” That position entirely ignores, and is contrary to, the
understands that Mr. Kelly currently does not have and has not had for
for the proposition the status quo is just fine and thus state that “[E]very
light of the global pandemic and the threat it poses to inmates, residents
of New York City, and the nation at large,” completely ignoring what
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Mr. Kelly falls into the latter category; trial is imminent, and he
cannot prepare. His situation is no different than the cases cited in Shipp
where release was ordered to allow the defendant to prepare for trial.
Kelly faces.
The idea put forth by the Government, and agreed to by the trial
court, that a federal criminal defendant could prepare for this case with
the restrictions now in place is entirely without merit. Frankly, Mr. Kelly
could not prepare for a disorderly conduct trial with these restrictions in
place.
The reality of the situation is that none of his attorneys have been
able to personally visit with him, face-to-face, for nearly four months.
8
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to prepare for a trial, any trial, let alone one of this magnitude, with
mounds of discovery dating back decades, without the ability to sit down
and speak with its agents, witnesses, or victims. That would never
happen, and the trial court would never force the Government to trial
Government seems to take solace in the trial court’s consolation that the
defendant and his lawyers will “as conditions return to normal, [have]
additional time to prepare for trial” (G. Resp. p. 26), the simple fact is
indication things are going to return to normal at any time before that.
for the four lost months. Coupled with the inevitable deluge of materials
9
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notion that Mr. Kelly and his counsel will be able to adequately prepare
The Government and the trial court also seem to take solace in the
fact “he still has access to counsel via telephone.” If not such a sad
suggestion, it would be laughable. Mr. Kelly, like all BOP inmates, has
among other things, contact loved ones and family members. Obviously,
those minutes do not go very far. To suggest that Mr. Kelly use them
exclusively to call counsel would be to further cut him off from the rest of
the world.
More to the point, all of those calls are monitored. To suggest that
he prepare for trial by placing hours of collect calls to his counsel, a month
(and thereby not talk to anyone else), allowing the Government to listen
hours of trial preparation a month? Beyond that, Mr. Kelly must share
that phone with all of the other inmates. Using a shared phone,
10
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True, there is a procedure in place for calls with counsel that are
BOP. The way those calls work is that counsel contacts the staff attorney
at the institution and advises that he would like to speak to Mr. Kelly.
expect a call. Once that multi-hour window is selected, counsel then must
wait for Mr. Kelly to call during that defined window. Thus, it normally
takes approximately four days or more from the time the process starts
until Mr. Kelly’s counsel receives the call. Again, counsel is competing
with dozens of other attorneys who are also trying to speak to their
clients, so the calls are infrequent. But, even presuming that those calls
could take place daily, Monday through Friday (which they cannot and
are not allowed to), interaction is still quite limited, i.e., to a few hours
per month.
and other discovery materiality Mr. Kelly over the telephone. Mr. Kelly’s
counsel cannot show him hotel records, flight records, business records,
11
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own agents, witnesses, and in preparation for trial – nor would any
district court ever require the Government to proceed to trial under those
conditions.
about their own health and claims that those concerns are not ripe.
Instead, the Government suggests that the courts should wait to see
not have the luxury of that time to wait. They have an upcoming trial
is telling that most of the United States Attorneys’ Offices across the
country, including apparently the one at issue here, are not even
person. They certainly are not sending them out to BOP jails and other
reopens, Mr. Kelly’s attorneys do not feel comfortable going right back
12
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into the Chicago MCC (or any other jail) for the foreseeable future. After
with scores of other inmates and guards. Each of those individuals are
counsel to meet with Mr. Kelly, they will have to run all of the risks that
prepare for trial, risking their own health. And of course, sit 6 feet away
there are no release conditions that will assure his own appearance.
and/or flight, the defendant must produce some credible evidence that
1See CDC Correctional Guidance at
https://www.cdc.gov/coronavirus/2019ncov/community/correction-
detention/guidance-correctional-detention.html.
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that the defendant is a flight risk. or (ii) by clear and convincing evidence
that the defendant will endanger the safety of others or the community
appearance and safety. United States v. Mercedes, 254 F.3d 433, 436 (2d
production is “not a heavy one to meet; not a heavy one to meet;” rather,
2By way of example, the Indictment alleges in Count one, as predicate acts, violations
of Sec. 2307 of the New York Code, “Venereal Disease; Person Knowing Himself to
Be Infected.” which provides that “Any person who, knowing himself or herself to be
infected with an infectious venereal disease, has sexual intercourse with another
14
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essentially alleges that Mr. Kelly’s own successful music career was a
ignores the fact that he made successful music, won Grammy awards,
RICO and the Mann Act, and surely extends the bounds of both.
shall be guilty of a misdemeanor.” This statute prohibits sexual intercourse by
anybody who has an STD. The definition is vast, ranging from HIV to yeast infections.
See 10 CRR-NY 23.1.[1] The only requirement is that the individual knows that he
has the venereal disease. In other words, it prohibits two consenting adults from
having sexual intercourse if either, or both, know that they have an infectious
venereal disease. It does not require that the disease be passed on, nor does it allow
the consenting adults to have sexual intercourse if the venereal disease is disclosed
beforehand. It does not permit the use of a condom, or account for modern day
suppression drugs. A request made by Mr. Kelly’s counsel to strike was denied.
(DE:69).
15
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victims. Moreover, the Government likely has its witnesses tightly under
Should Mr. Kelly even attempt to contact one of them, assuredly they
would immediately tell the FBI or the coordinator, causing this Court to
revoke his pretrial release. And in this regard the District Court at one
conditions. While pre-trial in the EDNY did not, there does not appear
to be any reason – they did not explain one and do not appear to have
did not flee. Equally, or perhaps even more importantly, when he was
indicted for very serious charges in Cook County, Illinois in the Spring of
added to that action, and he was told that he had to appear in court for
16
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did so. Notably, the Illinois prosecutors did not even ask to increase or
change any condition of his bond at that time. Last, instead of using the
last of his money to flee. Mr. Kelly posted a $100,000.00 bond in that case.
interest in liberty (see Salerno, supra, 481 U.S. at 750), this Court also
should consider the length of his pretrial detention. See United States v.
Gabrowny, 35 F.3d 63 (2d Cir. 1994) (noting that a substantial delay may
or risk of flight). This too weighs strongly in favor of Mr. Kelly’s release
pending trial. Mr. Kelly has already been detained for over 12 months.
If his trial does not move forward in September, he could be detained far
longer. Mr. Kelly undoubtedly has and will suffer a prolonged period of
guilt. Notably, the Bail Reform Act is expressly not intended to affect the
17
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that Mr. Kelly is a risk to flee and that he would obstruct justice. It must
U.S.C. § 3142(f); see also United States v. Friedman, 837 F.2d 48 (2d Cir.
Mr. Kelly has never missed a court date, either during prior proceedings,
3 It should be pointed out that, in US v. Avenatti, the District Court determined
conditions for release of a defendant who was detained because he violated the
conditions of bail that were set at his arraignment, after he was subsequently
found guilty. Additionally, the Court released the Defendant so he could meet
with his counsel and prepare for the two impeding trials and doing so under the
current conditions would have made that impossible. The Court clearly stated,
“This Order does not withdraw, is not in derogation of, and does not conflict with
this Court’s prior finding, and the Ninth Circuit’s affirmance of this Court’s
finding, that there is probable cause to believe that defendant committed state and
federal crimes while on pretrial release, that defendant is a danger to the
community, and that defendant failed to rebut the presumption that no conditions
or combination of conditions will assure the safety of the community. See United
States v. Avenatti, C.A. No. 20-50017(9th Cir. Mar. 6, 2020).
18
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between 2002 and 2008 or during his current state case that preceded his
arrest on federal charges. During the earlier state prosecution Mr. Kelly
was allowed to travel out of the country and returned. The Government
the reason why he prevailed, but the fact is that there was a three-week
trial with dozens of witnesses, including some of the same witnesses that
are involved in the federal proceedings now pending. Mr. Kelly was very
much at risk of going to jail during those proceedings and still he showed
up. Nor did he flee when he was charged in state court in 2019, rather
he turned himself in after he was asked to do so. And he would have done
Further, the Government has not presented evidence that Mr. Kelly
that does not translate into resources. While the Government points out
royalties, it fails to take into account the expenses he still has, including
maintain with all his touring equipment, employees, and agents and
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individual that would attest to the fact that he has ever expressed any
desire to flee. To that end, the Government cannot point to a single email
or text message supporting its intent to flee theory. In any event, where
If that is the case, then the opposite should also be true. Here, Mr. Kelly’s
Any suggestion that Mr. Kelly would flee also flies in the face of the
20
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that he has not fled, should be contrasted with the mere speculation that
he would obstruct justice and flee. The Government has repeatedly cited
that factor, and the District Court has repeatedly embraced it. However,
Paradoxically, the District Court points to the fact that Mr. Kelly is
entirely ignoring the fact that Mr. Kelly always appeared at that very
proceeding.
until very recently was Mr. Kelly’s girlfriend. Although completely out of
the norm, and even though she was an alleged victim, she was regularly
allowed to visit with Mr. Kelly while he was in jail at the MCC Chicago,
corresponded via letters, shared emails, and spoke daily on the telephone.
While Mr. Kelly knew that she was one of the Jane Doe’s, he never did a
21
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single obstructive thing. Given that she is now cooperating with the
obstruction, the Government would cite to it, and it has not. It never
happened.
Frankly, the idea that Mr. Kelly would now obstruct anyone is folly.
its case. But what is known is that individuals are cooperating with the
That is not the case with respect to all of the Jane Does. The
Government has not formally disclosed the identity of two of them, one
with her parents (and there is no evidence that he or anyone on his behalf
has reached out to her). Another is represented by counsel, has sued Mr.
Kelly, and has appeared in SRK2 telling her story. All of that makes it
and Mr. Kelly has not had contact with the other alleged victims, if ever,
for more than a decade. As for his now former girlfriend (and present
22
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arrested in this case. Although the norm is not to allow a federal criminal
defendant to have any contact with witnesses in the case against him,
she was allowed to have special visits with him while he was in the
that she was one of the Jane does. There is no evidence he ever tried to
did not try to obstruct or influence his own girlfriend, then how is it at all
To the point, the law speaks to the future, i.e., “a serious risk that
such person will…”, not that they have been. See 18 U.S.C. 3142(2)(B).
investigated, television shows dragging him through the mud, and the
filing of serious charges earlier this year in Illinois State court, the
23
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not have any criminal record at all. Even when the Government has
presence and the safety of the community. The question is whether there
are any conditions that would permit release. Here, conditions can easily
prosecuting Mr. Kelly, it is safe to assume that any witness that Mr. Kelly
prosecutions.
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CONCLUSION
by the District Court and remand this matter for the imposition of
Respectfully submitted,
25
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CERTIFICATE OF SERVICE
the Clerk of the Court for the United States Court of Appeals for the Second Circuit
by using the appellate CM/ECF system. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.