From 4.25.25 SDNY transcript
Please note that to avoid inadvertently running afoul of any court rules regarding the sharing of transcripts, we will only be sharing Ms. Friedman Agnifilo’s statements made in court and her interactions with the judge, rather than a complete transcript. “Proceeding continues” means the proceeding continued, but is not reproduced in its entirety here.
THE COURT: Good afternoon. Everyone can be seated.
Before we begin, I just want to make a record about my prior employment and my knowledge of the lawyers in this case. From July of 2005 to October of 2017, I was an assistant United States attorney in the United States Attorney's Office for the Southern District of New York. I returned to the office in November 2021 as a deputy United States attorney and remained in that role until May of 2023. During that time, I was the ultimate supervisor of every case in the criminal and civil divisions of the U.S. Attorney's Office.
From May of 2023 to December of 2023, I was special counsel to the U.S. attorney, and in that capacity supervised all cases in the criminal division and certain cases in the civil division. During the time I was deputy U.S. attorney, I participated in the interview process that resulted in
Ms. Messiter's hiring as an assistant United States attorney. And other than that, I am only generally acquainted with these four AUSAs, and I never worked with any of them directly on any particular case or matter.
I also know Ms. Friedman Agnifilo as a law enforcement partner on various issues and matters when she was at the Manhattan District Attorney's Office, and I was variously at the U.S. Attorney's Office and then chief of the criminal division at the New York Attorney General's Office, and also when I was commissioner of the New York City Department of Investigation from 2018 to 2021. We don't have a personal relationship beyond our past professional work together.
I also know Mr. Moskowitz very well, both as a former adversary in criminal cases and as a professional colleague in the criminal bar of this court. I don't believe that I know Mr. Agnifilo or Mr. Kaplan.
I have rules specifically regarding my recusal from U.S. Attorney's Office's matters which are posted on my public website. Mr. Gentile, have you reviewed those rules and have you reviewed the files at the U.S. Attorney's Office related to this matter?
MR. GENTILE: We have, your Honor.
THE COURT: And to the best of your knowledge, are you aware of any reason why I should recuse from this matter?
MR. GENTILE: We are not aware of any reason, your Honor.
THE COURT: Ms. Friedman Agnifilo, let me turn to you. Are you aware of any reason why I should recuse from this matter?
MS. FRIEDMAN AGNIFILO: No, your Honor.
THE COURT: Okay. Based on my own knowledge of the case and the representations of the government, I also don't see any basis for recusal. But Ms. Friedman Agnifilo, if you'd like time to consult with your client, just send me a letter within seven days of today if you change your mind or if you have any issue you'd like to raise. Obviously should facts develop as the case proceeds that bear on anything related to recusal, anyone should feel free to bring that to my attention.
[proceeding continues]
THE COURT: Ms. Friedman Agnifilo, if in the future you see any reason to make a renewed bail application, just send that directly to me. And I have rules on my public website about how that should be presented.
MS. FRIEDMAN AGNIFILO: Thank you, Judge.
[proceeding continues]
THE COURT: Okay. Let me just ask you briefly, Ms. Friedman Agnifilo, whether at this point — again, I'm not going to hold you to it, but just as we're thinking about the schedule — whether at this stage the defense has a sense of any expert testimony needed at the guilt phase for a defense case?
MS. FRIEDMAN AGNIFILO: We're not prepared to address that issue at this time, your Honor.
THE COURT: Okay. All right. We'll return to that at an appropriate time.
[proceeding continues]
THE COURT: Mr. Gentile, what can you tell me about your coordination with the District Attorney's Office regarding a trial of this matter or anything else that relates to our order of proceeding?
MR. GENTILE: Your Honor, the District Attorney's Office, I believe they have a trial already set for the fall. I believe that they will be proceeding on their normal course. We respectfully submit that we would proceed in our normal course. Given this is a capital case and there are issues that need to be litigated beforehand, we would expect just the nature of the two cases and the nature of the scheduling, that the Manhattan District Attorney's Office will most likely conduct their trial first, but we would not ask the Court to make any special accommodations. We just ask the Court to proceed during the normal course.
THE COURT: Ms. Friedman Agnifilo, what is the date set in the state for Mr. Mangione's state trial?
MS. FRIEDMAN AGNIFILO: Your Honor, we haven't discussed a trial date in the state yet with Judge Carro. What we've been talking about is potentially having hearings in the fall, suppression hearings, for example, but we have not talked about that.
We understand that there was a handshake deal between the prior administration and the Manhattan DA's Office that their case would go first. But now that the death penalty is being sought here, we are going to make a request that that no
longer be the case and that this case proceed, your Honor, and not the state court case. So that's going to be our official position. We plan on writing on that and making more official requests, but we just wanted to let your Honor know that that's what our position is.
THE COURT: That's very helpful. Thank you.
I mean, I think I agree with Mr. Gentile that we will -- barring some request otherwise, my intention is that we will set a schedule for this case as if it's the only case. And should an issue arise involving a conflict between the scheduling that either party wants to bring to my attention, you can certainly do that. But I think in terms of our management of this case, we ought to proceed as if it's the only case until circumstances suggest otherwise.
MS. FRIEDMAN AGNIFILO: Yes. It's partly scheduling, your Honor. As you know, there's a lengthy mitigation process that's going to occur in this particular case. It's partly scheduling, but it's also constitutional issues are going to be impacted if we are forced to try that case first and then before your Honor. But we plan on briefing that for your Honor, but I just wanted to let your Honor know that that's coming down the pike.
THE COURT: Okay. And so the next scheduling issue that I think we should address is I know that the defense filed a motion before Judge Parker on April 11 related to the death
penalty issues in this case. Of course events have overtaken us in terms of what the posture of that motion was.
What I would propose is that now that Mr. Mangione has been indicted and the government has filed its notice of intent as of last evening, it seems to me that the best course is either to deem the prior motion withdrawn without prejudice, or if the defense prefers, I can deny the motion as moot without prejudice to renewing those arguments and set a schedule that allows you to brief in a single motion all the issues that you want to raise regarding any actions of the government prior to indictment and any issues raised by the notice of intent.
MS. FRIEDMAN AGNIFILO: If your Honor is referring to the motion that we filed before Judge Ramos, the Part One judge?
THE COURT: Right. I think it initially went to Judge Parker, then it got sent to Judge Ramos in his capacity as Part One judge. We're talking about the same motion.
MS. FRIEDMAN AGNIFILO: Yes, your Honor. We would request an opportunity to renew that, set a motion schedule and renew that because we're obviously in a different procedural posture.
THE COURT: Yes. So I think in terms of just the docket, I'll reflect that the motion's been denied as moot without prejudice.
And how much time, Ms. Friedman Agnifilo, are you requesting to file a unified motion that might renew whatever arguments from the prior one you want to renew, as well as anything raised by the notice of intent?
MS. FRIEDMAN AGNIFILO: If we could have -- excuse me one second.
(Counsel and defendant conferred)
MS. FRIEDMAN AGNIFILO: Mr. Agnifilo is about to start another trial, your Honor.
THE COURT: Sure. Take a minute to confer.
(Counsel and defendant conferred)
MS. FRIEDMAN AGNIFILO: If we may have until the end of June, we'd appreciate that.
THE COURT: Sure. That is consistent with what I had in mind, approximately 60 days. Why don't we say Friday, June 27.
[proceeding continues]
THE COURT: Okay. All right. So I'll set the government's date to respond for Friday, August 8, and
August 22 for a reply.
And as I just said, I'd also like to, while we're here and have a schedule for discovery, set a schedule for the sort of ordinary pretrial motions in a criminal case, any motions to dismiss counts of the indictment, as well as any suppression motions. And so bearing in mind that these things are going to be proceeding somewhat on two tracks, I would propose to the defense sometime in late July or August for those motions. I see Mr. Moskowitz is maybe not happy with that.
Assuming that you have received all of the discovery by the end of May as I've directed the government to provide if that's at all possible, how much time do you presently think that you all would like to review that discovery and consider what pretrial motions you might have?
(Counsel and defendant conferred)
MS. FRIEDMAN AGNIFILO: If it's okay with your Honor, if we could have until the end of September since there's approximately three terabytes worth of data that is going to be produced. We're just getting started going through all of that. We'd appreciate that time.
THE COURT: I think that that's reasonable given the volume of the discovery and the other issues in this case. I'll set September 26 for now, Friday, September 26, as a date by which the defense will make any motions against the indictment or related to suppression. And the government's response on October 31, reply November 14. Okay.
I'd like to set then a next conference date which will address the pretrial motions, set a hearing date if we need to for suppression. Why don't we set that for Friday, December 5 at 11:00 a.m. My goal will be to set a trial date at that conference. So all counsel should come prepared on December 5
with their calendars, with any expected requests that you might have, if necessary at that time, Ms. Agnifilo, regarding any additional time you feel you need for mitigation investigation.
But my goal will be to leave that December 5 conference with a firm trial date set for 2026. Okay. And of course if anyone thinks there's a need for a conference before then because of issues related to the state case, because of issues that arise in this case, just don't hesitate to reach out, to send me a letter or reach out directly to Ms. Verneus to request a conference, and we'll set that at a mutually convenient time.
And likewise, the September -- the fall dates for the motion practice are only outside dates. Sometimes it will happen that early resolution of a particular issue would be helpful to counsel, so if you want to file something before then, don't feel you have to wait. But we'll expect those motions in the fall.
Okay. The last thing before we turn to the speedy trial clock and any other issues that counsel might like to raise is that given the nature of this case, I would like to just remind all counsel of the strictures of Local Criminal Rule 23.1 about public commentary about this matter that could impede or affect Mr. Mangione's ability to get a fair trial and the Court's ability to select a fair jury in this case.
I'm specifically directing the government to convey my directive to Mr. Clayton and request that he convey the same to Attorney General Bondi and any of her subordinates at Main Justice.
Ms. Friedman Agnifilo, anything else you'd like to raise before we talk about the speedy trial clock?
MS. FRIEDMAN AGNIFILO: I do want to make one record, if that's okay with you, your Honor, regarding this unprecedented dual prosecution, simultaneous dual prosecution of Mr. Mangione for the exact same offense. It's created numerous logistical and constitutional issues for us that, as I said, we'll be addressing in future motions to you, but there is one thing I'd like to put on the record.
We were just informed by the state court prosecutors that they were eavesdropping on all of Mr. Mangione's calls. They were listening to his attorney calls and his other calls that are going on, and they said that it was inadvertent that they listened to a call between Mr. Mangione and me, who I am the lead counsel of record. And they know that, and obviously the United States knows that as well.
And they said that these calls were given to them by the Southern District and they're being recorded at MDC. So we just want to make sure that something is put in place, your Honor, that does not -- they said that they didn't -- that only one person listened to it. They took steps to minimize any encroachment into the attorney-client relationship and no one
discussed with the one person who did listen, and that it was inadvertent.
But we would just ask that the Southern District put something in place to ensure that no calls to his legal team and among the legal team are either recorded or listened to, certainly not provided to the Manhattan DA's Office or the U.S. Attorney's Office.
THE COURT: Mr. Gentile, what can you tell me about this situation?
MR. GENTILE: Your Honor, this is the very first we've heard of this situation. Of course that's not the normal practice for the U.S. Attorney's Office or any office. All jail calls are recorded, as the Court knows, but we do not pull attorney-client calls. We will look into it, and we will make sure we rectify it, your Honor.
THE COURT: Okay. I mean, recognizing that you've just heard of this situation, I'd like a letter from the government within seven days of today — Friday, May 2, I believe — just updating the Court on, first, that Mr. Mangione is being afforded appropriate access to a line that is reserved for attorney calls. My understanding is the MDC still has such a line; is that correct?
MR. GENTILE: I'm not -- I can't answer that, your Honor.
THE COURT: So I would like to know what are the arrangements for Mr. Mangione to be able to speak to his attorneys without -- I know those calls are typically recorded by the Bureau of Prisons, but to ensure that he has access to a line that is segregated from any calls that go to the government, and to the extent there has been inadvertent production, what the U.S. Attorney's Office is doing to ensure that those calls have been segregated and aren't accessible to any member of the prosecution team.
MR. GENTILE: Certainly, Judge.
THE COURT: Okay. Mr. Gentile, anything else the government would like to raise before we talk about the speedy trial clock?
MS. FRIEDMAN AGNIFILO: No, your Honor.
MR. GENTILE: No, your Honor.
Just briefly, with respect to Rule 16 discovery, we anticipate producing that discovery pursuant to a protective order. We conferred briefly with defense counsel prior to your Honor taking the bench. We will meet and confer about the terms of that protective order, but we just wanted to let the Court know that a protective order will be forthcoming.
THE COURT: Okay. And obviously if you reach an impasse on the terms of that and you need my involvement, just let me know and we can arrange a conference if necessary.
MR. GENTILE: Certainly, Judge.
With respect to the Speedy Trial Act, the government moves to exclude the time between now and December 5 of 2025 from the provisions of the Speedy Trial Act to allow the government time to produce discovery, allow defense counsel time to review that discovery, and make whatever motions it deems appropriate.
MS. FRIEDMAN AGNIFILO: We agree, your Honor.
THE COURT: Okay. I'll just note that the indictment was returned on April 17. Recognizing the government's position that time doesn't begin to run until arraignment, I'm not sure that I agree with that position as a legal matter, but in any event, at most seven days have elapsed on the speedy trial clock. However, I will exclude the time from today until December 5 of 2025.
I find that the ends of justice served by excluding that time outweigh the interests of the public and the defendant in a speedy trial because the time is needed for the government to complete its production of discovery, for the defendant and its lawyers to review that discovery, for the filing of motions specifically related to the seeking of capital punishment as well as motions related to the indictment and any Fourth Amendment or Fifth Amendment suppression issues, and, in addition, for all counsel to continue to discuss the appropriate schedule and progress of this case.
Okay. Anything further, Mr. Gentile?
MR. GENTILE: Not from the government, Judge. Thank you.
THE COURT: Ms. Friedman Agnifilo?
MS. FRIEDMAN AGNIFILO: No, your Honor. Thank you very much.
THE COURT: Okay. The defendant will remain in custody, and I will see you all on December 5.
We're adjourned.
(Adjourned)