Ceglia v. Zuckerberg et al

Filing 589

DECLARATION signed by Alexander H. Southwell re 588 Reply to Response to Motion filed by Mark Elliot Zuckerberg, Facebook, Inc. filed by Mark Elliot Zuckerberg, Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R)(Snyder, Orin)

EXHIBIT D

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CAVUCEGC
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------x
UNITED STATES OF AMERICA
v.

12 MJ 2842

PAUL CEGLIA,
Defendant.
---------------------------------x
New York, N.Y.
October 31, 2012
11:20 a.m.
Before:
HON. COLLEEN McMAHON
District Judge
APPEARANCES
PREET BHARARA
United States Attorney for the
Southern District of New York
BY: JANIS M. ECHENBERG
CHRISTOPHER D. FREY
Assistant United States Attorneys
DEFENDANT (Via Telephone)
FEDERAL DEFENDERS OF NEW YORK
Attorneys for Defendant
BY: DAVID E. PATTON
-andDANIEL GREENE (Via Telephone)
ALSO PRESENT
Douglas Veatch, Postal Inspector
AARON MANGO, Assistant United States Attorney (Via
Telephone)
Linda Lewis, Deputy Clerk (Via Telephone)
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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(Case called)
MS. LEWIS: I am Linda Lewis.
In the courtroom is Assistant United States Attorney
Aaron Mango.
We have the defendant present with the marshals.
And we have Daniel Greene from the Federal Defenders
office here in Buffalo.
THE DEPUTY CLERK: In New York, if we can go back,
this is 12 Mag. 2842, United States of America v. Paul Ceglia.
MS. LEWIS: Are you calling the case?
THE DEPUTY CLERK: I am.
MS. LEWIS: Hold on. I am going to turn on the
recording device.
THE DEPUTY CLERK: Very good. We have a court
reporter here in the Southern District.
MS. LEWIS: Then we won't do anything here then.
THE COURT: Please do.
THE DEPUTY CLERK: Go ahead and do your recording.
THE COURT: We need belts and suspenders.
THE DEPUTY CLERK: Are we still with you?
You're still here?
Tell us when you are ready to proceed.
We can barely hear you now, if there is some way that
you folks could speak up.
MS. LEWIS: Can you hear me better now?
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE DEPUTY CLERK: Very much so.
The appearances here in the Southern District of New
York?
MR. FREY: For the government, Christopher Frey and
Janis Echenberg.
MR. PATTON: And David Patton with Federal Defenders
for Mr. Ceglia.
THE COURT: Good morning.
It is Judge McMahon.
Mr. Ceglia, are you present?
THE DEFENDANT: I am.
THE COURT: Thank you, sir.
I am going to keep my voice up.
I am in a very dark room with a little light bulb over
me, and I have a bunch of lawyers who are gathered around the
desk under adverse circumstances, but we need to have this
hearing and we need to have it today, and I would appreciate it
if everyone would cooperate by keeping voices up and speaking
slowly and distinctly.
The first order of business, it seems to me -- at
least I am advised by the magistrate judge in Buffalo who has
been very helpful -- is that the defendant needs to be examined
for eligibility for counsel. I think I would rather dispense
with that and go on to the hearing, unless we have some other
issue because we have no other way to conduct this hearing
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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except with Mr. Patton who is the head of the Federal Defenders
of New York. We have gone right to the top, gotten the top man
here to represent Mr. Ceglia.
MR. PATTON: That's good with us, your Honor. If
Mr. Ceglia, it turns out, can afford to hire counsel, we can
deal with that when he arrives in the district.
THE COURT: I think that would be appropriate, so
let's deal with the issue at hand. This is the government's
application under 18, United States Code, Section 3145(b). It
is an appeal from the magistrate judge's order in Buffalo
admitting the defendant to bail on conditions that I should put
on the record. It is, surrender of the defendant and his
family's United States and Irish passports and $21,000 in cash
to be posted by unidentified family and friends.
I have in hand Magistrate Judge McCarthy's decision.
The decision went counter to the recommendation of the pretrial
services office in the Western District of New York, Pretrial
Services Officer Curtis Middlebrooks who ascertained after an
interview that there appeared to him no condition or
combination of conditions that could reasonably assure the
defendant's appearance in court. I have a copy of that report.
I will note that yesterday I was on a number of calls
with the key office heads in this district, including the head
of pretrial services who offered to try to find someone who
could do a background investigation, and I said that I would
SOUTHERN DISTRICT REPORTERS, P.C.
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rely, for purposes of this hearing, on the one that was done in
Buffalo which, after all, is where the defendant was when he
was arrested. We would be in no condition to interview him or
to check anything out.
MR. GREENE: I'm sorry, your Honor, to interrupt.
This is Daniel Greene from the Federal Defenders up
here in Buffalo.
Mr. Ceglia is just having too much trouble hearing
what you said right now. I am not sure if there is any way -he cannot make out enough words to follow what is happening.
THE COURT: I am happy to start again.
Can Mr. Ceglia hear me more clearly now?
MR. GREENE: Yes, your Honor.
THE COURT: Pardon?
MR. GREENE: Yes, your Honor.
THE COURT: Let me say this again.
I have before me Magistrate Judge McCarthy's order
admitting Mr. Ceglia to bail on the posting of $21,000 in cash
by unidentified family and friends and the surrender of his and
his family's United States and Irish passports.
I have the pretrial services report which Magistrate
Judge McCarthy elected not to follow, prepared by Curtis
Middlebrooks of Pretrial Services in the Western District of
New York.
My own pretrial services office reached out to me
SOUTHERN DISTRICT REPORTERS, P.C.
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yesterday, but it appears to me that this is a thorough and
complete report from pretrial. I am not sure what, under the
adverse conditions we find ourselves in, our pretrial services
could have obtained by way of information that Pretrial
Services Officer Middlebrooks did not obtain. So that is the
pretrial services report that will be used and relied on for
purposes of this hearing.
In addition to those two documents, Judge McCarthy's
decision and the pretrial services report, I have a letter
dated October 28, 2012 on the stationery of the United States
Attorney's office for the Southern District of New York. I had
not seen this letter on Sunday when we had an emergency hearing
for the sole purpose of extending the stay that Judge McCarthy
had entered on Friday of last week, but I have that letter now.
I have seen it for the first time this morning.
Is there anything else in writing that anyone proposes
to give me before we get started?
MS. ECHENBERG: No, your Honor.
MR. PATTON: No, your Honor.
THE COURT: All right. The procedure, Mr. Ceglia,
will be that I will hear from the government first. It is
their appeal. I will then hear from Mr. Patton on your behalf.
I am sorry. I forget the name of the Federal Defender
who was on the phone -- Mr. Greene who was on the phone on
Sunday. Mr. Greene, if there is going to be anything that you
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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want to add, I will certainly be happy to hear you. You have
been most helpful.
So with that said, I will hear from the government
loudly and slowly.
MS. ECHENBERG: Thank you, your Honor.
Janis Echenberg for the government.
The government concurs with pretrial services'
determination that the defendant should be detained in this
case for the following reasons.
First, the defendant has a very strong incentive to
flee here. The case, the evidence against the defendant is
extremely strong. We outlined some of it in our letter, but it
includes -THE COURT: I have seen the criminal complaint. I
should say that I have read the criminal complaint.
MS. ECHENBERG: The evidence against the defendant
includes documents on his own computer and various electronic
media showing the manipulation of a contract, the fabrication
of the contract and the emails that support his civil case.
In addition, there is evidence on his own computer of
the actual contract, a true contract between the CEO of
Facebook, Mark Zuckerberg, and the defendant. And the evidence
on his own computer shows that that contract existed at the
relevant time as a contract between Mr. Zuckerberg and Mr.
Ceglia for work wholly unrelated to Facebook which did not even
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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exist at the time of the purported contract.
And then the evidence further shows manipulation of
what we believe to be a valid contract into this manufactured
contract about which Mr. Ceglia has brought his civil action.
The penalties in this case, the potential penalties
are very severe. Because of the extremely large intended loss
amount here, Mr. Ceglia's lawsuit is asking for 50 percent of
Mr. Zuckerberg's interest in Facebook. And so because of that
very large intended loss, well over 400 million, the guidelines
range applicable is 324 to 405 months.
And as we noted in our letter, Mr. Ceglia has spent a
significant amount of time in prison before as a youthful
offender, so he understands these penalties and, therefore, has
a very strong incentive to flee.
Mr. Ceglia has significant ties to Ireland and he has
virtually no ties to New York. He has been living in Ireland
since April of 2011. He has been there with his wife and his
two children. The only time that he has returned to New York
since then has been for two very short trips. In one of those
trips, he was ordered by his civil judge to return. He
returned for four days and then later he returned for two days.
His children are home schooled. He doesn't have any employment
that is based in New York. It appears that his only tie to New
York at this point is his civil lawsuit which, given the
criminal case and the posture of that case and the fact that he
SOUTHERN DISTRICT REPORTERS, P.C.
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has been pursuing his civil lawsuit for over a year from
abroad, does not seem to be enough to keep him here when he has
these very strong incentives to flee.
The defendant, as you know, is both an Irish citizen
and a United States citizen, and we've spoken to customs and
border patrol. And we have also looked on their web site and
we have found that it is possible for someone with a driver's
license and a birth certificate to cross the border. And once
he is in Canada -- and I would note that he lives quite close
to the Canadian border -- once he is in Canada, he can go to
Canadian authorities in Canada -THE COURT: I thought you meant Irish authorities.
MS. ECHENBERG: Excuse me.
-- Irish authorities in Canada, and he could get
travel documents to return to Ireland where he has been living.
So the fact that he has been ordered to turn in his American
and Irish passports really does not keep him from getting back
to Ireland.
We have also been in touch with Department of Justice
employees who work on the issues of extradition, specifically
from Ireland and we have been advised that it is very
difficult, extremely difficult to extradite an individual from
Ireland. So if he is to flee -THE COURT: Does that mean that there is no
extradition treaty? What does that mean?
SOUTHERN DISTRICT REPORTERS, P.C.
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MS. ECHENBERG: There is an extradition treaty, your
Honor, but it is very difficult, as I understand, to enforce.
We have got some very rough numbers from our senior trial
attorney who works on those issues, and we understand that
since the treaty has been enforced in 1984 -THE COURT: Since it was signed in 1984?
MS. ECHENBERG: Since it was entered into force,
correct, 1984, there have been 29 requests for extradition,
only eight of them have been granted, only three in the last 10
years.
THE COURT: And do you happen to know for what crimes
the extraditions were granted?
MS. ECHENBERG: I do. I can run through all of those
if you would like.
THE COURT: I would.
MS. ECHENBERG: One extradition was granted in May of
2011. That was a threat and extortion case. And it then took
three years to extradite the person after that.
In August of 2008, extradition was granted for a sex
offense. It took two years to extradite that person.
In October of 2006, extradition was granted for a
vehicular homicide. It took over seven years for that
extradition to take place.
In December of 1996, extradition was granted for a
fraud case. It took two years for that extradition to take
SOUTHERN DISTRICT REPORTERS, P.C.
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place.
In February of 1994, extradition was granted for
terrorism and customs violations. It took four and a half
years for that extradition to take place.
In October of 1999, extradition was granted for
conspiracy, homicide and robbery. It took four and a half
years for that extradition to take place.
And in March of 1985, extradition was granted for
fraud and theft, but I do not have any information on how long
that extradition took place.
I would also note that, within the last 10 years, 10
extradition requests have been denied.
So that is what we are basing our understanding of the
difficulty with extradition.
The defendant has the ability to flee, in addition to
being able to walk over the border. He reported to customs
when he came through just a few days ago. On October 24th, he
returned to the country.
We were alerted immediately when he returned and we
sought an arrest warrant as quickly as we could. And as soon
as agents could get to him, he was arrested. So we acted as
quickly as we could because we believed that he was a very
strong flight risk if he were to learn of our investigation.
When he crossed the border, he reported that he had
$21,000 on him. He has also told pretrial services that he
SOUTHERN DISTRICT REPORTERS, P.C.
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collected approximately 25,000 from family and friends and that
he could also come up with about 20,000 for bail.
I don't know if all of those numbers are the same or
those are different numbers, but in any event, he has at least
$21,000 at his disposal in cash.
He also reported to pretrial services that he had
$258,000 worth of property, several different properties, so he
has access both to cash and other assets.
This case is about the ability to manipulate
documents. There is evidence of document manipulation, both in
the actual facts of this case. And, also, in our forensic
review of his electronic media, our forensic examiner found
evidence of attempted creation of a New York State driver's
license and of a United States currency. So even without his
passport or his driver's license or his birth certificate or
any of the documents that would normally allow him to enter
Canada -- assuming he tried to do that legally -- he has the
proven ability to create identification documents.
I would also note that if some bail conditions are set
by your Honor and he is ordered to voluntarily appear in the
Southern District of New York, it is my understanding that
pretrial services does not have the ability to monitor him
during -THE COURT: That was my next question.
MS. ECHENBERG: -- that movement. Electronic
SOUTHERN DISTRICT REPORTERS, P.C.
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monitoring works within a person's home, and it is usually shut
off or they don't monitor when the person is going places that
they have been allowed to go. So we are talking about a sixor seven-hour drive, when it is my understanding there would be
no ability to monitor him. So for all of those reasons,
because the risk of flight is extremely high here, the
government believes that detention is appropriate.
THE COURT: Mr. Patton.
MR. PATTON: Thank you, your Honor.
It is worth noting at the outset that the government
bears a heavy burden here on a case that doesn't involve any
danger to the community.
THE COURT: It depends on your definition of "danger."
MR. PATTON: The government has not moved for
detention based on danger. Based on the government's own
request for detention, there is no issue of danger.
MR. GREENE: If I could ask you to speak up so that we
could hear you better.
MR. PATTON: Sure. We just moved the phone.
The government relies heavily on the allegations in
the complaint. Those allegations are hotly contested. This is
an extraordinarily unusual case in which the government is
bringing charges based on allegations that claims being made in
a civil suit are false before the judge in that civil case has
made any rulings about the veracity of those claims.
SOUTHERN DISTRICT REPORTERS, P.C.
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I understand from having spoken with Mr. Ceglia's
civil attorneys, this is a big battle of the experts. They
have got one of the top guys from the Secret Service, a former
Secret Service forensic analyst who says exactly the opposite
of everything the government is saying in these charges about
the emails and about the contract dispute and the forensics.
So I would greatly dispute the government's
characterization of the evidence in this case.
Secondly, the penalties that the government throws out
there, that the intended loss amount is half of Facebook's
value and therefore -THE COURT: Which is a moving target.
MR. PATTON: Fair enough, and not moving in Facebook's
direction.
The claim that somehow Mr. Ceglia realistically is
facing these astronomical amounts of time in jail is just
crazy.
I suppose it is theoretically possible, but this Court
knows as well as anyone what typical fraud sentences are, and
on a case like this where there isn't actually a dime of actual
loss, that, to me, seems absurd. I can tell you that, were I
to stay on this case as Mr. Ceglia's attorney and I sat down
with him and talked to him about the risks and rewards on this
case and the pros and cons of him fleeing the United States -fleeing the town where he has been born and raised and has
SOUTHERN DISTRICT REPORTERS, P.C.
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lived virtually his entire life where his parents have lived
for the past 30 years, where his wife and children and all of
his other family reside, where his mother-in-law is dying
cancer -- to avoid these charges and live in perpetual exile in
Ireland, given what he is realistically facing on this case, he
would have to be out of his mind to do that. So the incentives
to flee just aren't there at all.
The idea that it is difficult to extradite somebody
from Ireland, to me, should carry very little weight. We are
not talking about Venezuela here. We have no statistics on
Ireland as compared to other countries. It is difficult to
extradite anyone from anywhere, and it is a lengthy process.
Two to three to four years doesn't sound to me like any
different extradition process that I know of. We just had a
case come in from the U.K. that took 10 years to extradite.
THE COURT: Kind of an extraordinary case, Mr. Patton.
MR. PATTON: Fair enough, but two to three years
doesn't sound extraordinary to me at all. So the fact that he
would he hole up in Ireland, given all that he has to lose
here -- he owns property here. Yes, the government has noted
what the rough assessment of those properties is, $258,000.
They failed to mention that his equity on those is about
$38,000. So he would be fleeing his primary business which is
property management of these relatively low-priced houses that
he rents out and manages, that he would leave that behind, that
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those would disappear to the bank, that he would leave his
parents holding the bag on a signature bond, which is what we
would ask for, that if your Honor is inclined to do anything to
change the bail conditions already set in this case, that
requiring a $100,000 bond with his parents co-signing it, which
from my understanding, again, in talking to his civil
attorneys, $100,000 would be probably their entire net worth,
that he would bankrupt his parents in the small hometown where
they have spent the past 30 years so that he could go spend the
rest of his life in hiding -THE COURT: Do they own a home?
MR. PATTON: They do, your Honor. I don't know what
the equity on the home is, maybe Mr. Greene can help out, but
my understanding is they have owned a fairly moderate-priced
home for a very long time.
THE COURT: Mr. Greene, do you have any intelligence?
MR. GREENE: $50,000, your Honor.
THE COURT: I missed that.
MR. GREENE: $50,000.
They also own a second building in Wellsville that is
worth approximately $60,000.
THE COURT: Do they own that free and clear?
MR. GREENE: In equity, there is $60,000 in equity.
THE COURT: So $50,000 equity in the parents' home and
$60,000 in the second building in Wellsville?
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MR. GREENE: Yes.
THE COURT: Mr. Patton.
MR. GREENE: Your Honor, it is my understanding from
my client, they also have about $100,000 in equity in other
property.
THE COURT: Go ahead, Mr. Patton.
MR. PATTON: So given that information, a $100,000
personal recognizance bond is something that they could
satisfy, but not easily which means it is a heck of a lot of
incentive for him not to flee because it would essentially ruin
them.
The idea that it is worth it for him to flee this
case, more so than the hundreds of other defendants who come
through who have bail conditions set doesn't seem to me to be a
very forceful argument, and I think the Court should set those
conditions.
MS. ECHENBERG: May I respond?
THE COURT: Response from the government.
MS. ECHENBERG: Yes, your Honor.
One thing that I want to note that was in our letter,
but I just want to point it out, what makes this case different
than another defendant facing serious charges is that this
defendant was living in Ireland, and we believe he went to
Ireland to avoid a separate investigation. As we noted in our
letter, the defendant has said to the press in public reports
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that he went to Ireland -THE COURT: Do you have copies of those?
MS. ECHENBERG: I do on my BlackBerry, your Honor. I
apologize. I don't have anything printed out but I could
certainly get something for the Court.
THE COURT: Do you have your BlackBerry?
MS. ECHENBERG: I could find it. I'm not sure how
quickly I could find it.
THE COURT: Odd how you think I would not be
interested.
MS. ECHENBERG: I apologize, your Honor. The article
I saw was from a local newspaper where the defendant stated
that he left for Ireland because he was being harassed from
Facebook's attorneys. It is my understanding that Facebook's
attorneys have hired private investigators to look into a
variety of things, including an alleged property scam in
Florida. And because that was being looked into, among other
reasons, the defendant left for Ireland. He said, he wanted to
avoid harassment, but we believe it is because he thought that
he was being investigated by law enforcement in Florida. So if
even an investigation could trigger him to leave, certainly a
prosecution could.
In addition, I do not believe the lawsuit in the civil
case is hotly contested. While Mr. Patton is correct that it
goes on, there has been an extended process on the motion to
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dismiss. My understanding is that Facebook will be responding
to Mr. Ceglia's -THE COURT: Does the government have reason to believe
that the defense has not in fact hired an expert who is a
former Secret Service forensic computer person?
MS. ECHENBERG: They have, your Honor. And from what
I know about that person -- if I could just consult with my
co-counsel for one moment, I just want to make sure that I get
this right.
THE COURT: Sure.
MS. ECHENBERG: So this expert -- I believe we are
talking about the same person -- was involved in the Martha
Stewart case and was either -- was convicted of perjury in
connection with the Martha Stewart case.
THE COURT: The name of the expert?
MS. ECHENBERG: I'm sorry. It's been very difficult
to have access to anything.
THE COURT: A perjury conviction?
MS. ECHENBERG: We can send an email right now and we
can probably get that name by the end of this proceeding.
As I understand it, there were depositions in the
civil case in which that expert admitted or testified to doing
some of the same things with evidence that resulted in his
perjury conviction in the Martha Stewart case.
THE COURT: You mean there are depositions in the
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civil case?
MS. ECHENBERG: There are depositions in the civil
case just with respect to the motion to dismiss. There was
expedited discovery of the experts, just with respect to the
two Facebook motions to dismiss.
THE COURT: I say that is very odd because motions to
dismiss are addressed to the four corners of the complaint and
expert testimony is not admissible on such motions.
MS. ECHENBERG: That is my understanding of what is
happening in the civil case. There is expedited discovery
requiring Mr. Ceglia to turn over all of his electronic media
so that it can be reviewed. Experts reviewed that. They also
reviewed the alleged contract, took ink samples and that sort
of thing with an eye towards the motion to dismiss.
THE COURT: It sounds like a motion for summary
judgment to me, but OK.
MS. ECHENBERG: Excuse me. That is probably right. I
have forgotten my civil terminology.
So I don't think relying on that expert really gets us
very far. And the government has hired an independent expert
not related to any of these experts. We got a search warrant
for the electronic media. And our expert has reviewed it and
found what I have told your Honor.
In addition, we got emails from Harvard, including
emails from 2003 which are contemporaneous with some of the
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emails, the alleged emails that Mr. Ceglia relies on in his
complaint. Those emails just don't exist in the backup tape
from 2003. So there is no expert involved in that analysis.
That is just clear-cut evidence indicating that the emails in
the civil complaint are fabricated.
With regard to the $400 million number, I agree with
your Honor that Facebook's value is a moving target -THE COURT: With regard to the $400 million, there is
no judge in the Southern District of New York that comes down
harder on fraud defendants than this one. This guy isn't
looking at 360 months. Mr. Patton is correct. He is also not
looking at short time, at least not if he were to be convicted
and I were to be his judge -- and I think there would be other
people who would feel the same way -- he is not looking at 90
days, but he is not looking at 360 months.
MS. ECHENBERG: And with respect to extradition, I
would just note that we were advised again by the senior trial
attorney who handles this that Ireland does stand out -THE COURT: I will accept that there are issues with
extradition.
MS. ECHENBERG: So, again, the government requests
detention in this case.
THE COURT: I need more information. I need more
information. But I will tell you what. It appears to me from
reading the criminal complaint that the strength of the
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government's case is overwhelming. The government's forensic
analysis of the defendant's own computers, the evidence not
only of fraud in connection with this case but of other
fraudulent-style activities including the counterfeiting of
United States currency and the manufacture of a New York State
driver's license and the Harvard emails which I had
particularly noted when I read the criminal complaint -- or I
should say the lack of the Harvard emails which I had
particularly noted when I read the criminal complaint -suggests to me that the government will have a strong case -no case is impregnable, but the government will have a strong
case against the defendant for the manufacture of documents,
the fact that manufacture of documents in connection with a
lawsuit that the government alleges plausibly is designed to
extort.
Now, it is absolutely true that in 999 civil cases out
of a thousand, the civil case gets to run its course, but it is
not unprecedented for civil cases to be interrupted by
indictments. I have had several on my calendar over time.
Other judges have as well, and it is not automatic but it is
often the case that the civil action takes a backseat to the
criminal action when the same set of facts yields a criminal
complaint or an indictment, some sort of a criminal proceeding.
It has been suggested by the defense that the veracity
of the government's forensic evidence, at least insofar as it
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relates to the examination of the defendant's own computers, is
going to be hotly contested.
I would like to know the name of the expert who is
going to contest it. I would like to know his background.
MR. GREENE: Your Honor, I have that information.
THE COURT: I would like to know his background, and I
would like to know if he has indeed been convicted of perjury,
that is germane to me.
Mr. Greene.
MR. GREENE: The expert's name is Larry Stewart. He
was acquitted of the charge of perjury.
THE COURT: Larry Stewart, S-T-E-W-A-R-T?
MR. GREENE: Yes, your Honor.
THE COURT: Acquitted of the charge?
MS. ECHENBERG: Let me just make a clarifying point.
It is my understanding that Facebook, with their own
computer forensic expert, has analyzed Mr. Ceglia's computer.
The government independently has analyzed Mr. Ceglia's
commuter.
I don't believe that there has been any experts on the
side of Mr. Ceglia with regard to the computer. The experts
have been with regard to the contract itself, meaning the ink,
the print and the other issues with regard to the computer.
I apologize for not being clear on this before. I
don't think that there is any battle of the experts -- and
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certainly Mr. Greene can jump in if I am getting this wrong -but I don't believe that there is any battle of the experts
with regard to the electronic media and what is one -THE COURT: Mr. Greene, can you clarify that for me?
MR. GREENE: Yes. It is Mr. Neil Broom that is the
expert that addressed that issue.
THE COURT: Mr. Neil -MR. GREENE: Broom, B-R-O-O-M.
THE COURT: Mr. Broom is the person who has opined on
Facebook's allegation that the contract is false, and you are
saying that there is another expert, this Larry Stewart person?
MR. GREENE: Yes.
THE COURT: And has he examined the computers?
MR. GREENE: He has worked on the computer.
Your Honor, Mr. Ceglia insists on addressing the Court
on this issue. I have advised him as to the issues as
presented, the fact that what he says may be used against him.
He insists on speaking to this issue.
THE COURT: I am sure you have advised him, and I will
advise you, Mr. Ceglia, that anything that you say to me is
being taken down by a court reporter in the presence of the
United States Attorney and can and will, if necessary, be used
against you.
THE DEFENDANT: I understand, your Honor.
Your Honor, I would just like, since I have some
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familiarity with this case over two years of litigating it in
the civil case, I know the details of these things very
specifically and I just wanted to address those.
The so-called images that they found on my personal
computer of the contract, they were evaluated by Neil Broom
quite in-depth and the computer itself was found to have
mal-ware and the remnants of what was very clearly hacking that
had taken place on the computer as well as the fact that even
Facebook's own experts admitted that the images that they found
were scanned in an order that was physically impossible, which
made it impossible for those images to have been naturally
created on that computer and that they had to have come from an
outside source.
We have quite a bit of evidence in the case to support
the fact that at that point in time Mark Zuckerberg was quite
an experienced hacker.
And we have rebutted each and every allegation outside
of this idea that there is something to do with a 100-dollar
bill and a driver's license which is the first mention of this
that I have ever heard of.
The experts that the government have, have not even
observed the original contract. I mean, they are accusing me
of this fraud and the original contract still sits in a safety
deposit box under a civil attorney's name.
So I seriously question what kind of forensic work
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could conceivably be done when we have hired not just Larry
Stewart, but the former head of the Secret Service's forensic
division and he has attested under oath that the contract is
authentic -- not just that it is consistent, but that it is
authentic.
They also produced a report by James Blanco who is
another world renown forensic expert. He also examined the
documents and very clearly also has stated that the document is
authentic. And this goes into great detail, but there have
been over 500 pages of expert reports submitted by world-class
experts to support the authenticity of the contracts. The fact
that the government, that the prosecution is attempting to
slight world renown experts for their benefit I think is wrong.
And Mr. Stewart is an incredibly well respected individual who
was wrongly accused of perjury and was acquitted on all of
those charges.
Thank you, your Honor.
THE COURT: Thank you, Mr. Ceglia.
THE DEFENDANT: Your Honor, if I could give you one
detail, give you an example of the other?
THE COURT: Mr. Ceglia, I don't think it is a good
idea for you to talk to me. I also can't stop you from talking
to me. I have warned you what the consequences might be, so
has Mr. Greene.
THE DEFENDANT: Thank you, your Honor.
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MR. GREENE: Mr. Ceglia has concluded speaking.
Your Honor, if I could also address a couple of
issues?
THE COURT: Thank you, Mr. Greene.
MR. GREENE: The youthful offender issue noted by the
government, Mr. Ceglia was not in prison for any amount of
time. He was put on supervision for five years. He was not
incarcerated.
Mr. Ceglia knows of no Florida property scheme as
raised by the government.
Also, the issue of the money that he has access to,
the $25,000, the $21,000 cash and the $20,000 that he could
raise, that all refers to the same $21,000 currently that would
be turned over under Judge McCarthy's old order.
Finally, as far as the electronic monitoring
possibility, Mr. Ceglia has a home in Wellsville and has a
landline. My understanding from probation, that as long as
there is a landline phone that electronic monitoring could be
connected to, that Mr. Ceglia would be a candidate for
electronic monitoring.
THE COURT: Unquestionably, Mr. Greene, he is a
candidate for electronic monitoring. The problem is the need
to transport him from time to time from Wellsville to New York
City.
MR. GREENE: That is just a matter of indicating to
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probation when that travel will take place and allow for it.
THE COURT: Yes, I know they allow for it. The
government is concerned that he won't come southeast, he will
go northwest.
MR. GREENE: I know that the driver's license issue
was brought up as far as admission into Canada. My experience,
and this is just based on being in Buffalo, that only a
passport-enhanced driver's license that can gain admission to
Canada for a U.S. citizen. Mr. Ceglia does not have such an
enhanced driver's license.
THE COURT: What is an enhanced driver's license?
MR. GREENE: I'm sorry?
THE COURT: What is an enhanced driver's license?
MR. GREENE: It is, essentially, a special driver's
license that the government or the office of the border patrol
can give to someone who has showed them a passport, given them
proof of citizenship in a way to make travel over the border -THE COURT: It is like a trusted traveler thing at the
airport, something like one of those trusted travelers at the
airport?
MR. GREENE: I guess so, yes, your Honor.
THE COURT: Do you happen to know or does anyone
happen know if there is any difference with respect to the
presentation of Irish as opposed to American documents at the
Canadian border?
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MS. ECHENBERG: I don't know the answer to that
question, your Honor, but I do know that we checked the
Department of Homeland Security web site this morning and it
reflects that just a regular driver's license and birth
certificate are all that are needed, and that is consistent
with what customs and border patrol told us on Friday when we
inquired to them.
I would also note that the safety deposit box that the
defendant referred to, that safety deposit box was closed in
May of 2012.
MR. GREENE: I'm sorry. I didn't hear that last part.
MS. ECHENBERG: The safety deposit box where the
alleged contract had been housed by Mr. Ceglia and his
attorney, that safety deposit box was closed, according to the
bank, in May of 2012.
THE COURT: Well, I will tell you what I am inclined
to do, and it is always subject to review as more information
becomes available.
This is the sort of a case where a defendant would
ordinarily be admitted to bail. The bail is grossly
inadequate, grossly inadequate given the strength of the
government's case, the amount of the alleged fraud, the
significant penalties even if they be not 360 months -- the
significant penalties that the defendant is facing, the fact
that he apparently has provided inaccurate information to the
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probation department in connection with the preparation of the
report -- which I very much don't appreciate -- all of those
things augur for bail substantially in excess of $21,000. I
see no moral suasion in that bail -- none whatsoever.
I am prepared to admit the defendant to bail with
substantial modifications.
I am prepared to admit him to bail on a $250,000
recognizance bond signed by three substantially responsible
persons acceptable to the Court and secured with all of his
parents' real estate and with the equity in his own real
estate.
Additionally, electronic monitoring with strict
probation supervision and complete probation access to his
computers, to any computers used by the defendant at home or at
his place of business. I say "used by," "not owned by."
And I am not sure whether probation can come up with
appropriate filtration software to prohibit certain kinds of
activity. I don't know if this is the kind of case where that
is even possible. This is not like a kiddie porn case, but the
defendant stands accused of serious crimes for which the
government has substantial evidence of his use and misuse of
computers. I appreciate that there may be two sides to the
story, but the government's evidence is strong and I do not
discount it simply because the defendant has someone who is
willing to challenge the government's evidence.
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Electronic monitoring at the defendant's expense with
travel restricted to the Western District of New York within a
15-mile radius of the defendant's home.
Have we gotten to the Canadian border yet?
MR. GREENE: No, your Honor. That is well south of
Rochester.
THE COURT: That's what I thought.
And for trips to visit pretrial in, I assume,
Rochester -- I assume that's where he would be supervised,
given where Wellsville is located -- and to the Southern
District of New York for court appearances.
A border watch should, of course, be put out for the
defendant.
And all travel documents surrendered, whether of U.S.
or Irish provenance.
I am somewhat concerned about the aspect of the
magistrate judge's order that demanded the surrender of travel
documents for his wife and children. They don't stand accused
of anything. I am not sure why that was part of the order. I
am not sure if that was legal.
Can anybody enlighten me on this?
MR. PATTON: I have never heard of that as a condition
in this district, your Honor.
MR. GREENE: Your Honor, I believe that was at the
suggestion that, if Mr. Ceglia were to flee, he would flee with
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his family; they were also traveling with him through 2011 and
2012.
THE COURT: That I understand. I am prepared to let
that portion of the order stand until such time as somebody
representing Mr. Ceglia may wish to challenge the legality of
that part of order because it is totally unknown to me, but I
am going to guess that Judge McCarthy knew what he was doing
and I am prepared to let that portion of the order stand.
MR. PATTON: Judge, just for the record, I will object
to that condition.
THE COURT: Thank you, Mr. Patton. I am perfectly
willing to review it if you are ever able to get power and can
do some research, but I am adamant about the $250,000 personal
recognizance bond, the co-signers and the real estate security
coming from his parents.
I want Mr. Ceglia -- sir, you need to understand
something about me. I have no compunction about taking
people's parents' homes away and heaving them homeless on the
street -- none whatsoever.
THE DEFENDANT: I understand, your Honor and I will
take every court date very seriously. I appreciate it.
MR. PATTON: Your Honor, on the co-signers, could I
ask, just so that we can expedite this process for them
upstate, that the co-signers be allowed to be his parents and
his wife, and then we can just designate those?
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MR. GREENE:

Could that be repeated just louder,

please?
MR. PATTON: I am just making a request as to the
co-signers, that the three co-signers that we can just
designate them now as his parents and his wife.
THE COURT: As long as they are acceptable to the
government. Since the parents are going to have to put all of
their real estate up, I cannot see any particular reason why
the parents should not be co-signers. That will take care of
the rest of their assets.
It is not clear to me that his wife has any assets
that he does not.
MR. PATTON: I don't know that either, your Honor, but
she would certainly be on the hook if he were to flee.
MR. GREENE: Judge, she is co-owner of the property
with Mr. Ceglia.
THE COURT: I think it should be a third independent
person.
MS. ECHENBERG: Your Honor, I would just note that at
least the defendant's mother is also an Irish citizen, so there
is the possibility that the entire family could flee. They
have all spent a significant part of the last year -THE COURT: As I said I am perfectly happy to bankrupt
them. I am perfectly happy to take their real estate and to
sell it, if that is what they choose, but I don't think that
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the defendant's wife should be the third co-signer. The
parents I will accept as co-signers, but the third person
should be an independent individual with some net worth. It
would expedite matters and we could call upon the good offices
of the folks in Western District to, in the first instance,
pass on the propriety of the co-signers and send their
recommendation down here, that would be helpful.
I am quite serious with the restriction in terms of
mileage on the electronic monitoring.
MS. ECHENBERG: Your Honor, I am not sure there is any
way to enforce that 15-mile radius. I believe if he has a
bracelet, it is tied to something in his home. If he leaves
his home, the bracelet alerts.
THE COURT: I understand that. I am restricting
travel to 15 miles.
MS. ECHENBERG: Even approved travel?
THE COURT: Approved travel.
MS. ECHENBERG: So he is in his home -THE COURT: He is in his home. He is, in effect, a
prisoner in his home when he is on electronic monitoring. And
I am not willing to release him until the electronic monitoring
is set up and until we have full satisfaction of the financial
conditions. We do have to arrange for Mr. Ceglia to appear
down here. I don't know how long it will take for the
financial conditions to be satisfied.
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All of the other standard conditions of bail in the
Southern District of New York other than travel in the Southern
and Eastern Districts -- that is not a condition here -- the
only time he needs to be in the Southern District is when he is
here for court and he doesn't need to go to the Eastern
District to get to this courthouse from Wellsville, New York.
Mr. O'Neil, do we have a list of the other conditions?
We rarely impose bail.
MS. ECHENBERG: Your Honor, I think this is obvious,
but are you imposing strict pretrial services supervision?
THE COURT: Strict pretrial supervision. That means
frequent visits to and from your pretrial services officer.
And, Mr. Ceglia, let me explain how electronic
monitoring works.
You will have a bracelet, and you have to have in your
home a landline telephone that does not have call forwarding,
call waiting or any access to a modem, and that number will be
called from time to time by your pretrial services officer. If
you are not there to answer the telephone, a warrant for your
arrest will issue promptly.
THE DEFENDANT: OK, your Honor. Does that mean that
if my landline has call forwarding -THE COURT: It means it is going to have to change.
It cannot have call waiting, call forwarding, caller ID. You
may have to set up a separate landline for this.
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THE DEFENDANT: Technically, the phone shouldn't be
used for anything but calling the officers?
THE COURT: It gets set up with pretrial services, but
the conditions are no call forwarding, no caller ID, no call
waiting and no modem, and that is true of every electronic
monitoring that we order in this district. That's so that
nobody one can look at the phone and know that it is the
pretrial service officer that is calling. No one can forward a
call so that you can be at another location. In other words,
the idea is, if you are not there to pick up the phone, you are
in trouble.
I need to find the rest of the standard conditions.
MS. ECHENBERG: I think that the only one that hasn't
been noted is no new travel applications.
THE COURT: No new applications anywhere on the planet
for new travel documents.
MS. ECHENBERG: I think that we have covered the other
standard conditions, your Honor.
THE COURT: I have no idea whether I will ultimately
be the judge in this case. I am here sitting in Part 1 on
review. It will get wheeled out eventually to someone.
MS. ECHENBERG: On that note, your Honor, I believe
that we need to set a preliminary hearing date because this was
an arrest on a complaint.
MR. GREENE: Your Honor, if I can notify the Court -SOUTHERN DISTRICT REPORTERS, P.C.
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THE COURT: I thought, according to Magistrate Judge
McCarthy, that the defendant waived preliminary hearing or just
the preliminary hearing before him? My question is, do we need
to wheel this case out today?
MS. ECHENBERG: It is on a complaint.
THE COURT: We do not.
MS. ECHENBERG: So we cannot wheel it out.
THE COURT: Then the hearing will be in magistrate's
court, right?
You will have to forgive my lack of familiarity with
magistrate's court.
MR. PATTON: Because I am not standing next to
Mr. Ceglia, I cannot have this conversation with him; perhaps
Mr. Greene can talk to him about whether or not he wants to
waive a preliminary hearing until the 30th day. That doesn't
mean that the preliminary hearing is waived altogether, but it
allows more time before -THE COURT: And the 30th day from this complaint is
November -MS. ECHENBERG: 29th, I believe.
THE COURT: You filed the complaint when?
MS. ECHENBERG: October 26th is when he was arrested.
THE COURT: 30 days would be November 25th, which is a
Sunday, so it would be November 26th.
Mr. Greene.
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MR. GREENE: Mr. Ceglia would waive his preliminary
hearing until November 26th.
THE COURT: Fine. Then I am going to set the
preliminary hearing for November 26th.
MS. ECHENBERG: Thank you, your Honor.
THE COURT: 11 a.m., magistrate's court.
MS. ECHENBERG: May I raise one logistical matter?
I think you had alluded to this, but given our court
is technically not open, it seems that actually creating the
bond and what needs to be done so that the defendant can meet
those conditions will need to be done elsewhere, and I don't
know if the Western District of New York can do that, or
perhaps we should talk to the courthouse in White Plains.
THE COURT: The courthouse in White Plains is open and
fully functional. If you need to do that here, I would urge
you to do that. If it can be done in the Western District,
fine. We can email up a transcript -- God bless our court
reporter for coming in today. We can mail up a transcript, but
if it has to be done here, White Plains is 20 miles to the
north -- easily accessible if you don't try to take the Bronx
River Parkway which is flooded between Virginia Avenue and the
spring, as it always is when it rains.
Anything else that we need to do today?
MS. ECHENBERG: No, your Honor.
MR. GREENE: Your Honor, Mr. Ceglia wanted to notify
SOUTHERN DISTRICT REPORTERS, P.C.
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the Court and the government there that his parents might have
succeeded in making it to the hearing. They were outside of
the courthouse earlier today and wanted to be there also to
identify themselves as co-signers. And he also wanted to put
forward a third co-signer, a friend by the name of Merv
Freeman -- I'm sorry -- Lehman.
THE COURT: Spell the name.
MR. GREENE: L-E-H-M-A-N.
THE COURT: Mr. Lehman.
I don't want to sever this telephone connection, but
we have an Assistant United States Attorney in the room up
there in Buffalo, that my Assistants down here can talk to the
Assistant up there about what information needs to be procured.
And to expedite the process, I would love to call once
again upon the good offices of our friends in the Western
District of New York to run the necessary background checks.
You people have been remarkably helpful. Thank you
very much.
MR. PATTON: Just, Dan and Mr. Ceglia, to let you
know, your parents are not here in the courtroom.
THE DEFENDANT: OK. Thank you.
MS. ECHENBERG: Mr. Mango, perhaps we can speak if you
can stay on the line because I am just not sure we will get
another telephone connection and perhaps we can speak for a few
minutes after this conference ends.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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MR. MANGO: Sure. If you would like, you can call me
at my office.
MS. ECHENBERG: I am just not certain that we can get
another phone number. This 1-800 number seems to be the only
number that we were able to reach.
THE COURT: We are having tremendous phone
difficulties in lower Manhattan.
MR. MANGO: Sure.
THE COURT: It is really extraordinary. There has not
been anything quite like it except for 9/11, so we are dancing
as fast as we can, but I did not want to put Mr. Ceglia's
hearing off any longer.
OK, folks, you know where to reach me if you need me.
I am on duty for the rest of the week.
Thank you very much.
Especially thank you, Mr. Greene, for all of your
assistance and Mr. Patton or being here today.
MR. PATTON: Thank you, your Honor.
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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]