Securities and Exchange Commission v. Baston

Filing 33

FINAL JUDGMENT AS TO DEFENDANT WILSON BASTON:IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is permanently restrained and enjoined from violating, directly or indirectly, Section 10(b) of the Securities Exchange Act of 1934 (the "E xchange Act") [15 U.S.C. § 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. § 240.10b-5], by using any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of any security: and further set forth in this Order. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is liable for disgorgement of $2,675,000, representing his ill-gotten gains as a result of the conduct alleged in the Complaint, together with prejudgment interest in the amount of $341,004.60. However, Defendant's obligation to pay disgorgement and prejudgment interest shall be deemed satisfied upon entry of this Final Judgme nt by the orders of restitution and forfeiture entered against him in United States v. Wilson Baston, 23. Cr. 303 (VM) (S.D.N.Y.). IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Consent isincorporated herein with the same force and effect a s if fully set forth herein, and that Defendant shall comply with all of the undertakings and agreements set forth therein. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, for purposes of exceptions to discharge set forth in Section 523 of the B ankruptcy Code, 11 U.S.C. §523, the allegations in the complaint are true and admitted by Defendant, and further, any debt for disgorgement, prejudgment interest, civil penalty or other amounts due by Defendant under thisFinal Judgment or any ot her judgment, order, consent order, decree or settlement agreement entered in connection with this proceeding, is a debt for the violation by Defendant of the federal securities laws or any regulation or order issued under such laws, as set forth in Section 523(a)(19) of the Bankruptcy Code, 11 U.S.C. §523(a)(19). (Signed by Judge Mary Kay Vyskocil on 3/6/2025) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 3/6/2025

SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
23-cv-05347-MKV
v.
WILSON BASTON (A/K/A CHANON GORDON),
Defendant.

FINAL JUDGMENT AS TO DEFENDANT WILSON BASTON
The Securities and Exchange Commission having filed a Complaint and Defendant
Wilson Baston (a/k/a Chanon Gordon) (“Defendant”) having entered a general appearance;
consented to the Court’s jurisdiction over Defendant and the subject matter of this action;
consented to entry of this Final Judgment; waived findings of fact and conclusions of law; and
waived any right to appeal from this Final Judgment:
I.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant is
permanently restrained and enjoined from violating, directly or indirectly, Section 10(b) of the
Securities Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. § 78j(b)] and Rule 10b-5
promulgated thereunder [17 C.F.R. § 240.10b-5], by using any means or instrumentality of
interstate commerce, or of the mails, or of any facility of any national securities exchange, in
connection with the purchase or sale of any security:
(a)

to employ any device, scheme, or artifice to defraud;

1

(b)

to make any untrue statement of a material fact or to omit to state a material fact
necessary in order to make the statements made, in the light of the circumstances
under which they were made, not misleading; or

(c)

to engage in any act, practice, or course of business which operates or would
operate as a fraud or deceit upon any person.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in
Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who
receive actual notice of this Final Judgment by personal service or otherwise: (a) Defendant’s
officers, agents, servants, employees, and attorneys; and (b) other persons in active concert or
participation with Defendant or with anyone described in (a).
II.
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant
is permanently restrained and enjoined from violating Section 17(a) of the Securities Act of 1933
(the “Securities Act”) [15 U.S.C. § 77q(a)] in the offer or sale of any security by the use of any
means or instruments of transportation or communication in interstate commerce or by use of the
mails, directly or indirectly:
(a)

to employ any device, scheme, or artifice to defraud;

(b)

to obtain money or property by means of any untrue statement of a material fact
or any omission of a material fact necessary in order to make the statements
made, in light of the circumstances under which they were made, not misleading;
or

(c)

to engage in any transaction, practice, or course of business which operates or
would operate as a fraud or deceit upon the purchaser.

2

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in
Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who
receive actual notice of this Final Judgment by personal service or otherwise: (a) Defendant’s
officers, agents, servants, employees, and attorneys; and (b) other persons in active concert or
participation with Defendant or with anyone described in (a).
III.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that pursuant to Sections
21(d)(1) and 21(d)(5) of the Exchange Act [15 U.S.C. §§ 78u(d)(1) and (5)] and Section 20(b) of
the Securities Act [15 U.S.C. § 77t(b)], Defendant is permanently restrained and enjoined from
directly or indirectly, including, but not limited to, through any entity owned or controlled by
Defendant, participating in the issuance, purchase, offer, or sale of any security; provided,
however, that such injunction shall not prevent Defendant from purchasing or selling securities
for his own personal account; and
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in
Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who
receive actual notice of this Final Judgment by personal service or otherwise: (a) Defendant’s
officers, agents, servants, employees, and attorneys; and (b) other persons in active concert or
participation with Defendant or with anyone described in (a).
IV.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, pursuant to Section
21(d)(2) of the Exchange Act [15 U.S.C. § 78u(d)(2)] and Section 20(e) of the Securities Act [15
U.S.C. § 77t(e)], Defendant is prohibited from acting as an officer or director of any issuer that
has a class of securities registered pursuant to Section 12 of the Exchange Act [15 U.S.C. § 78l]

3

or that is required to file reports pursuant to Section 15(d) of the Exchange Act [15 U.S.C.
§ 78o(d)].
V.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is liable
for disgorgement of $2,675,000, representing his ill-gotten gains as a result of the conduct
alleged in the Complaint, together with prejudgment interest in the amount of $341,004.60.
However, Defendant’s obligation to pay disgorgement and prejudgment interest shall be deemed
satisfied upon entry of this Final Judgment by the orders of restitution and forfeiture entered
against him in United States v. Wilson Baston, 23. Cr. 303 (VM) (S.D.N.Y.).
VI.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Consent is
incorporated herein with the same force and effect as if fully set forth herein, and that Defendant
shall comply with all of the undertakings and agreements set forth therein.
VII.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, for purposes of
exceptions to discharge set forth in Section 523 of the Bankruptcy Code, 11 U.S.C. §523, the
allegations in the complaint are true and admitted by Defendant, and further, any debt for
disgorgement, prejudgment interest, civil penalty or other amounts due by Defendant under this
Final Judgment or any other judgment, order, consent order, decree or settlement agreement
entered in connection with this proceeding, is a debt for the violation by Defendant of the federal
securities laws or any regulation or order issued under such laws, as set forth in Section
523(a)(19) of the Bankruptcy Code, 11 U.S.C. §523(a)(19).

4

VIII.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain
jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment.

Dated: ______________,
March 6 _____
2025
____________________________________
UNITED STATES DISTRICT JUDGE

5

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EXHIBIT A

Case 1:23-cr-00303-VM
O1VJBASP

1

Document 33-2

2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x

3

UNITED STATES OF AMERICA,

4

v.

5

WILSON BASTON,

Filed 03/12/24

Page 1 of 20

1

23 Cr. 303 (VM)

6

Plea
Defendant.

7
------------------------------x
8
New York, N.Y.
January 31, 2024
11:00 a.m.

9
10
11
12

Before:
HON. ROBERT W. LEHRBURGER,

13

U.S. Magistrate

14

APPEARANCES

15

DAMIAN WILLIAMS
United States Attorney for the
Southern District of New York
ALEX ROSSMILLER
Assistant United States Attorney

16
17
18
19

DAVID PATTON
FEDERAL DEFENDERS OF NEW YORK, INC.
Attorney for Defendant
BY: MICHAEL ARTHUS

20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Judge

Case 1:23-cr-00303-VM
O1VJBASP

Document 33-2

1

(Case called)

2

THE DEPUTY CLERK:

3

Filed 03/12/24

for the record starting with the government.
MR. ROSSMILLER:

5

Alex Rossmiller for the government.

6

MR. ARTHUS:

Good morning, your Honor.

For Mr. Baston, Michael Arthus, Federal

Defenders.

8

Good afternoon.

9

THE COURT:

10

Good morning all.

Good morning,

Mr. Baston.

11

THE DEFENDANT:

12

THE COURT:

Good morning, sir.

All right.

I understand we're here

13

because you intend to plead guilty to a charge from your

14

indictment, specifically Count Two.

15

today?

16
17
18

2

Attorneys, please state your name

4

7

Page 2 of 20

THE DEFENDANT:

How do you intend to plead

Your Honor, I intend to plead guilty,

sir.
THE COURT:

In order to take your plea, I am going to

19

swear you in because I'm going to need to ask you a number of

20

questions.

21

you give false information you could be prosecuted for perjury.

I remind you that because you'll be under oath, if

22

Do you understand?

23

THE DEFENDANT:

24

(Defendant sworn)

25

THE COURT:

Yes.

First order of business is a form that is

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
O1VJBASP

Document 33-2

Filed 03/12/24

Page 3 of 20

3

1

entitled Consent to Proceed Before a United States Magistrate

2

Judge on a Felony Plea Allocution.

3

have the right to have your plea taken by a United States

4

district judge, but you are agreeing to have your plea taken by

5

a United States magistrate judge such as myself.

This form says that you

6

As a magistrate judge, I have the authority to take

7

your plea with your consent, and you'll still be entitled to

8

all the rights and protections as if you were before a district

9

judge.

10

sentence.

And the district judge will be the one who imposes the

11

Do you understand that?

12

THE DEFENDANT:

13

THE COURT:

14

THE DEFENDANT:

15

THE COURT:

16

explain it to you?

All right.

Did you sign the consent form?

Yes, I did.

Before you signed it, did your lawyer

17

THE DEFENDANT:

18

THE COURT:

19

THE DEFENDANT:

20

THE COURT:

21

Yes.

Yes, he did.

Did you sign it voluntarily?
Yes, I did.

Do you, in fact, wish to proceed with your

plea before a United States magistrate judge?

22

THE DEFENDANT:

Yes, I do.

23

THE COURT:

24

So the purpose of this proceeding is to make sure that

25

you understand your rights, to decide whether you are pleading

The consent is accepted.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
O1VJBASP

Document 33-2

Filed 03/12/24

Page 4 of 20

4

1

guilty of your own free will, and to make sure you are pleading

2

guilty because you are guilty and not for some other reason.

3

So I'm going to ask you a number of questions.

4

understand or don't hear, let your attorney know or let me know

5

and I will clarify, okay?

6

THE DEFENDANT:

7

THE COURT:

8

THE DEFENDANT:

9

THE COURT:

10

THE DEFENDANT:

11

THE COURT:

12

THE DEFENDANT:

13

THE COURT:

14

THE DEFENDANT:

15

THE COURT:

If you don't

Yes.

What is your full name?
Wilson James Baston, Jr.

How old are you?
62, sir.

Can you read and write in English?
Yes.

How far did you go in school?
Two years of college.

Are you currently or have you recently

16

been under the care of a psychiatrist, psychologist, or other

17

mental health provider for any reason?

18

THE DEFENDANT:

19

THE COURT:

20

No, sir.

Have you ever been hospitalized for mental

illness, alcoholism, or drug addiction?

21

THE DEFENDANT:

22

THE COURT:

No, sir.

Do you have any condition that affects

23

your ability to see or to hear?

24

THE DEFENDANT:

25

THE COURT:

No, sir.

Do you have any condition that affects

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
O1VJBASP

Document 33-2

Filed 03/12/24

Page 5 of 20

5

1

your ability to think or to understand or to make judgments or

2

decisions on your own behalf?

3

THE DEFENDANT:

4

THE COURT:

5

As you sit here today, are you under the

influence of any mind-altering drug or alcohol?

6

THE DEFENDANT:

7

THE COURT:

8

THE DEFENDANT:

9

THE COURT:

10

THE DEFENDANT:

11

THE COURT:

12

Yes, sir.

Do you understand what is happening in

this proceeding?

14

THE COURT:

Yes, I do.

Have you seen a copy of the indictment

that contains the charges against you?

16

THE DEFENDANT:

17

THE COURT:

18

THE DEFENDANT:

19

THE COURT:

20

THE DEFENDANT:

21

THE COURT:

Yes, I have.

Have you read it?
Yes, I have.

Do you understand what it says you did?
Yes, I do.

Have you had enough time to speak with

your attorney about your case and how you wish to plead?

23

THE DEFENDANT:

24

THE COURT:

25

Yes, I do.

Is your mind clear?

THE DEFENDANT:

22

I am not.

Do you feel okay today?

13

15

No, sir.

Yes, I have.

Has your attorney explained to you the

consequences of pleading guilty?
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
O1VJBASP

Document 33-2

1

THE DEFENDANT:

2

THE COURT:

3

Filed 03/12/24

Page 6 of 20

6

Yes, he has.

Are you satisfied with your attorney's

representation?

4

THE DEFENDANT:

5

THE COURT:

Yes, I am.

Does either counsel have any objections to

6

or concerns about defendant's competence to plead at this time?

7

Mr. Rossmiller?

8

MR. ROSSMILLER:

No, your Honor.

9

MR. ARTHUS:

No.

10

THE COURT:

I'm now going to explain certain

11

constitutional rights that you have.

12

will be giving up if you enter a guilty plea.

13

listen carefully and if you don't hear or understand, let us

14

know and I will clarify.

15

These are rights that you
So again, please

Under the Constitution and the laws of the United

16

States, you have the right to plead not guilty to the charges

17

contained in the indictment.

18

Do you understand?

19

THE DEFENDANT:

20

THE COURT:

Yes.

If you plead not guilty, you would be

21

entitled under the constitution to a speedy and public trial by

22

a jury of those charges.

23

innocent, and the government would be required to prove your

24

guilt beyond a reasonable doubt before you could be found

25

guilty.

At that trial, you would be presumed

And you could not be convicted unless a jury of 12
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
O1VJBASP

Document 33-2

Filed 03/12/24

Page 7 of 20

1

people agreed unanimously that you are guilty beyond a

2

reasonable doubt.

3

Do you understand that?

4

THE DEFENDANT:

5

THE COURT:

7

Yes, I do.

If you decided to go to trial, at that

6

trial and every stage of your case you would be entitled to be

7

represented by an attorney.

8

an attorney would be appointed to represent you at the

9

government's expense.

10

attorney, if you ran out of money, an attorney would still be

11

appointed to continue to represent you.

12

to an attorney all the way through trial and not just for

13

giving a guilty plea, so your decision to plead guilty should

14

not depend on whether you can afford to hire an attorney.

And if you could not afford one,

Even if you retained a private defense

15

Do you understand that?

16

THE DEFENDANT:

17

THE COURT:

You would be entitled

Yes, I do.

During a trial, the witnesses for the

18

prosecution would have to come to court and testify in your

19

presence where you could see and hear them and your attorney

20

could cross-examine them.

21

offer evidence on your own behalf.

22

the Court's power to compel witnesses to come to court to

23

testify in your defense, even if they did not want to come.

And if you wanted, your lawyer could

24

Do you understand that?

25

THE DEFENDANT:

You'd also be able to use

Yes, I do.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
O1VJBASP

1

Document 33-2

THE COURT:

Filed 03/12/24

Page 8 of 20

At a trial, you would have the right to

2

testify in your defense, if you wanted to, but you also have

3

the right not to testify.

4

that could not be used against you in any way.

5

suggestion of guilt would be permitted from the fact that you

6

did not testify.

And if you chose not to testify,

7

Do you understand that?

8

THE DEFENDANT:

9

THE COURT:

10

8

No inference or

Yes, I do.

If you were convicted at trial, you would

have the right to appeal that verdict to a higher court.

11

Do you understand that?

12

THE DEFENDANT:

13

THE COURT:

Yes, I do.

As I said before, you have the right to

14

plead not guilty.

Even now you have the right to plead or

15

continue to plead not guilty and go to trial.

16

plead guilty, if the Court accepts your plea, you will give up

17

the rights I have just described.

18

will be no trial.

All that will remain to be done will be to

19

impose a sentence.

You and the government will have a chance

20

to make arguments about what sentence you should get, but there

21

will not be any further trial to determine whether you are

22

guilty or not guilty of the charges to which you have pled

23

guilty.

24

Do you understand that?

25

THE DEFENDANT:

But if you do

If you plead guilty, there

Yes, I do.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
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THE COURT:

Document 33-2

Filed 03/12/24

Page 9 of 20

9

Finally, if you do plead guilty, you are

2

also giving up the right not to incriminate yourself, and I

3

will ask you questions about what you did in order to satisfy

4

myself that you are actually guilty.

5

will be admitting your factual and legal guilt.

6

Do you understand that?

7

THE DEFENDANT:

8

THE COURT:

By pleading guilty, you

Yes, I do.

So I'm now going to review with you the

9

charge to which you intend to plead guilty and the consequences

10

of pleading guilty to it.

11

you with securities fraud in violation of Title 15, United

12

States Code, Section 78j(b) and 78ff, Title 17, Code of Federal

13

Regulations, Section 240.10b-5, and Title 18, United States

14

Code, Section 2.

15

Count Two of the indictment charges

I will now ask the assistant United States attorney to

16

state the elements of this charge.

Elements are the things the

17

government would have to prove beyond a reasonable doubt in

18

order to establish your guilt.

Mr. Rossmiller?

19

MR. ROSSMILLER:

Yes, your Honor.

Thank you.

20

In connection with Count Two, which charges the

21

defendant with securities fraud, the government would have to

22

prove at trial that in connection with the purchase or sale of

23

securities not registered on an exchange, here, certain

24

promissory notes, the defendant employed a device, scheme, or

25

artifice to defraud or engaged in an act, practice, or course
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
O1VJBASP

Document 33-2

Filed 03/12/24

Page 10 of 20

10

1

of business that operated or would operate as a fraud or deceit

2

upon a purchaser or seller of the security, again, here,

3

certain promissory notes.

4

The government also would have to prove that the

5

defendant acted knowingly, willfully, and with an intent to

6

defraud when engaging in this scheme; and, finally, that the

7

use of any means or instrument of transportation or

8

communication in interstate commerce or any facility of any

9

national securities exchange was used.

10

The government would also have to prove venue by a

11

preponderance of the evidence, that is, that a portion of the

12

scheme that was in furtherance of the scheme occurred in the

13

Southern District of New York.

14

THE COURT:

15

Mr. Baston, how do you intend to plead to Count Two?

16

THE DEFENDANT:

17

THE COURT:

Thank you.

Guilty, sir.

So with respect to the offense to which

18

you are pleading, I want to make sure you understand the

19

maximum possible penalty that the court may impose.

20

means the most that could possibly be imposed.

21

mean that it is necessarily what you will receive, but by

22

pleading guilty you are exposing yourself to the possibility of

23

receiving any combination of punishments up to the maximum that

24

I am about to describe.

25

Maximum

It does not

Do you understand that?
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
O1VJBASP

Document 33-2

1

THE DEFENDANT:

2

THE COURT:

Filed 03/12/24

Page 11 of 20

11

Yes, I do.

So the maximum term of imprisonment for

3

pleading guilty to Count Two is 20 years and a maximum term of

4

supervised release of three years.

5

that after you are released from prison, you may be subject to

6

supervision by the probation department.

7

supervised release and thereafter violate any condition of that

8

supervised release, the district judge can revoke the term of

9

supervised release previously imposed and return you to prison

10

without giving you any credit for time previously served on

11

post-release supervision.

Supervised release means

If you are placed on

12

In addition to these restrictions on your liberty, the

13

maximum possible punishment also includes financial penalties.

14

The maximum allowable fine for pleading guilty to Count Two is

15

the greatest of $5 million or twice the gross pecuniary gain

16

derived from the offense or twice the gross pecuniary loss to

17

persons other than you resulting from the offense.

18

is also required to impose a $100 mandatory special assessment.

The Court

19

In addition to pleading guilty, you are admitting to

20

the forfeiture allegations, and you agree to forfeit a sum of

21

money equal to $2,675,000 representing the proceeds traceable

22

to the commission of the offense.

23

entry of a consent order of forfeiture annexed to your plea

24

agreement.

25

amount ordered by the Court.

And you, in fact, consent to

Finally, you also agree to make restitution in an

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
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2

Document 33-2

Filed 03/12/24

Page 12 of 20

12

Do you understand all those maximum potential
penalties as I've described them so far?

3

THE DEFENDANT:

4

THE COURT:

Yes, I do.

In addition, if you are a naturalized

5

citizen of the United States, then your guilty plea may also

6

have adverse consequences for your immigration status such that

7

you could be subject to denaturalization and removal.

8

are not a United States citizen, then your guilty plea may also

9

have adverse consequences for your ability to remain in or

10

return to the United States, including removal, deportation,

11

denial of citizenship, and denial of admission to the United

12

States in the future.

13

bound by your guilty plea, that is, you will not be able to

14

withdraw it, regardless of any advice you have received from

15

counsel or others regarding the immigration consequences of

16

your plea.

If you

If that does happen, you will still be

17

Do you understand that?

18

THE DEFENDANT:

19

THE COURT:

Yes.

Do you now understand the charges against

20

you to which you intend to plead guilty and the consequences of

21

pleading guilty to them?

22

THE DEFENDANT:

23

THE COURT:

Yes, I do.

So I have before me a written plea

24

agreement dated December 6, 2023.

25

THE DEFENDANT:

Did you sign this agreement?

Yes, I did.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
O1VJBASP

1
2

THE COURT:

Document 33-2

4

THE COURT:

Yes, I did.

Did you discuss it with your attorney

before you signed it?

6

THE DEFENDANT:

7

THE COURT:

Yes, I did.

Did your attorney explain to you all of

its terms and conditions?

9

THE DEFENDANT:

10

THE COURT:

11

13

signed it?
THE DEFENDANT:

8

Page 13 of 20

Did you read the agreement before you

3

5

Filed 03/12/24

Yes, he did.

Do you understand all of its terms and

conditions?

12

THE DEFENDANT:

13

THE COURT:

Yes, I do.

So the letter says that you and the

14

government have reached agreement regarding the appropriate

15

calculation of your sentence under a part of our law known as

16

the sentencing guidelines, that the appropriate guideline

17

sentencing range is 57 to 71 months' imprisonment.

18

Do you understand that?

19

THE DEFENDANT:

20

THE COURT:

Yes, I do.

So under the agreement, neither you nor

21

the government is allowed to argue to the sentencing judge for

22

a calculation that is different than the one given.

23

the sentencing judge is not bound by the calculation in the

24

letter, and he or she will be free to do his or her own

25

calculation, which may result in a sentencing range that
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

However,

Case 1:23-cr-00303-VM
O1VJBASP

1

Document 33-2

Filed 03/12/24

Page 14 of 20

14

differs from the one in this letter.

2

Do you understand that?

3

THE DEFENDANT:

4

THE COURT:

Yes, I do.

The sentencing range is just one of many

5

factors the judge will consider in determining your sentence.

6

The judge has discretion to give you a sentence below or above

7

the range, anywhere up to the maximum I told you about.

8

Do you understand that?

9

THE DEFENDANT:

10

THE COURT:

11

Yes, I do.

The sentencing guidelines range also

provides for a fine in the range of 20,000 to $5 million.

12

Do you understand that, as well?

13

THE DEFENDANT:

14

THE COURT:

Yes, I do.

So as long as the sentencing judge

15

sentences you to a prison term of no longer than 71 months, you

16

are giving up your right to challenge your sentence, whether by

17

direct appeal, writ of habeas corpus, or otherwise.

18

Do you understand?

19

THE DEFENDANT:

20

THE COURT:

Yes, I do.

By pleading guilty, you also will not be

21

able to appeal any fine up to $5 million, any lawful sentence

22

of supervised release, any restitution as set forth in the

23

agreement, and any forfeiture as set forth in the agreement.

24

Do you understand that?

25

THE DEFENDANT:

Yes, I do.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
O1VJBASP

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THE COURT:

Document 33-2

Filed 03/12/24

Page 15 of 20

15

Under the terms of the plea agreement,

2

even if you later learn that the government withheld from your

3

counsel certain information that would have been helpful to

4

your defense, you will not be able to complain about that or

5

withdraw your guilty plea on that basis.

6

Do you understand?

7

THE DEFENDANT:

8

THE COURT:

9

Yes, I do.

Counsel, is there any other provision you

would like me to review with the defendant?

Government?

10

MR. ROSSMILLER:

Not from the government, your Honor.

11

THE COURT:

Defense?

12

MR. ARTHUS:

No.

13

THE COURT:

Mr. Baston, apart from what is contained

14

in the plea agreement, have any promises been made to you in

15

order to get you to plead guilty?

16

THE DEFENDANT:

17

THE COURT:

No, sir.

Has anyone threatened, forced, or coerced

18

you in any way, either directly or indirectly, to get you to

19

plead guilty?

20

THE DEFENDANT:

21

THE COURT:

No, sir.

And now that you've been advised of the

22

charges against you, the possible penalties you face, and the

23

rights you are giving up, is it still your intention to plead

24

guilty to Count Two of the indictment?

25

THE DEFENDANT:

Yes, it is.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
O1VJBASP

1
2

THE COURT:

Document 33-2

Page 16 of 20

own free will?
THE DEFENDANT:

4

THE COURT:

Yes, sir.

Mr. Baston, with respect to Count Two of

the indictment, how do you plead, guilty or not guilty?

6

THE DEFENDANT:

7

THE COURT:

Guilty.

Can you please tell me in your own words

8

what you did that makes you guilty of the crime charged to

9

which you are pleading.

10

THE DEFENDANT:

From 2018 to 2023, I engaged in a

11

scheme to defraud here in New York City.

12

invest money with me by telling them it would be used solely

13

for real estate transactions.

14

their money to pay other investors instead of putting it

15

towards real estate transactions.

16

how their money would be used so that they would invest with

17

me.

18

for the harm I have caused.

19

THE COURT:

20

16

Is your plea voluntary and made of your

3

5

Filed 03/12/24

I misled people to

This wasn't true.

I deeply regret my actions.

I often used

I misled my investors about

I apologize to the victims

And did you know at the time that you

committed those acts that they were illegal?

21

THE DEFENDANT:

Yes.

22

THE COURT:

23

Mr. Rossmiller, are there any additional questions you

All right.

24

would like me to ask the defendant?

25

MR. ROSSMILLER:

No, your Honor, just say that the

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
O1VJBASP

Document 33-2

Filed 03/12/24

Page 17 of 20

17

1

government proffers that it would expect to be able to prove

2

venue by a preponderance of the evidence, in particular, based

3

on financial transactions that occurred in and through the

4

Southern District of New York, and that certain victims were

5

based in the Southern District of New York at the time of the

6

scheme, and they themselves transacted in financial entities

7

also located in the Southern District of New York.

8

understanding is that the defendant does not dispute or have

9

any argument with the government's proffer as to venue.

My

10

THE COURT:

Is that correct?

11

MR. ARTHUS:

Yes, that's correct.

12

THE COURT:

Mr. Rossmiller, do you believe there's

13

sufficient factual predicate for a guilty plea?

14

MR. ROSSMILLER:

15

THE COURT:

I do, your Honor.

And does the government represent that it

16

has sufficient evidence to establish guilt beyond a reasonable

17

doubt at trial?

18

MR. ROSSMILLER:

Yes.

19

And your Honor, I think were the case to go to trial,

20

the government would expect to prove that Mr. Baston falsely

21

represented to investors that their investments would be used

22

in their entirety to fund real estate investments.

23

Mr. Baston, in fact, used the funds for other purposes

24

including for his personal use and enrichment and also to pay

25

off other prior investors, and that Mr. Baston perpetrated the
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

And

Case 1:23-cr-00303-VM
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Document 33-2

Filed 03/12/24

Page 18 of 20

18

1

fraudulent scheme in part through telephone calls, use of

2

interstate bank wires and transfers, and the use of interstate

3

electronic communications.

4

respect to the use of interstate communications and with wires,

5

my understanding is the defendant does not dispute the

6

government's proffer as to those facts.

And I should say again, with

7

THE COURT:

8

Mr. Arthus, are there any additional questions you

9

All right.

Thank you.

would like me to ask the defendant?

10

MR. ARTHUS:

No.

11

THE COURT:

And do you believe there's sufficient

12

factual predicate for a guilty plea?

13

MR. ARTHUS:

Yes.

14

THE COURT:

So Mr. Baston, on the basis of your

15

responses to my questions and my observations of your demeanor,

16

I find that you are competent to enter an informed guilty plea

17

and that there is a factual basis for it.

18

you understand your rights, that you are aware of the

19

consequences of your plea, including the sentence that may be

20

imposed, and that you are voluntarily pleading guilty, and that

21

you have admitted that you are guilty as charged in Count Two

22

of the indictment.

23

and recommend the district judge do the same.

24
25

I'm satisfied that

For these reasons, I'm accepting your plea

Mr. Rossmiller, will the government order a copy of
the transcript and submit it, together with any additional
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
O1VJBASP

Document 33-2

Filed 03/12/24

Page 19 of 20

1

paperwork, so that the district judge can act on that

2

recommendation.

3

MR. ROSSMILLER:

4

THE COURT:

19

Yes, your Honor.

And I understand there is not yet a

5

sentencing date; is that correct?

6

MR. ROSSMILLER:

7

Judge Marrero asked the parties to contact his

8

chambers once this had occurred and concluded, but we, I think,

9

have discussed a sentencing control date of May 31.

10

THE COURT:

11

2024 at 10:00 a.m.

12

prepared.

13
14

That's correct.

Yes.

I will set a control date of May 31,

And I direct that the presentence report be

Will you be prepared within 14 days to deliver the
case summary to the probation department?

15

MR. ROSSMILLER:

16

THE COURT:

Yes, your Honor.

And defense counsel, will you be available

17

with your client within 14 days to be interviewed by the

18

probation department?

19

MR. ARTHUS:

Likely.

THE COURT:

In other words, you're going to work out

20
21
22

We'll discuss with them dates,

but yes.

the timing?

23

MR. ARTHUS:

Yes.

24

THE COURT:

What are we doing with respect to

25

detention or release pending sentencing?
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Case 1:23-cr-00303-VM
O1VJBASP

1

Document 33-2

MR. ROSSMILLER:

Filed 03/12/24

Page 20 of 20

20

The government does not have any

2

applications with respect to the defendant's bail and ask that

3

the conditions of bail be continued.

4
5
6

THE COURT:

The defendant will continue to be on bail

pursuant to the conditions previously imposed.
I remind you, Mr. Baston, those conditions still

7

apply, and a violation of those conditions can have serious

8

consequences including revocation of bail and prosecution for

9

bail jumping.

10

Do you understand?

11

THE DEFENDANT:

12

THE COURT:

13

MR. ROSSMILLER:

14

THE COURT:

Anything further from the defense?

15

MR. ARTHUS:

No.

16

THE COURT:

All right.

17

Good luck to you, Mr. Baston.

18

THE DEFENDANT:

19

(Adjourned)

Yes, I do, sir.

Anything further from the government?
No, thank you, your Honor.

We're adjourned.

Thank you, your Honor.

20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]