14 - Transcript of Hearing Held March 3, 2017 - Avinoam Luzon Before Judge Laura Taylor Swain

Case 1:17-mj-01418-UA Document 14 Filed 03/17/17 Page 1 of 18 1
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1 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
UNITED STATES OF AMERICA
3
v. 17 CR 1418 (LTS)
4 Bail Hearing
AVINOAM LUZON
5
Defendant
6 ------------------------------x
7 New York, N.Y.

March 3, 2017
8 2:15 p.m.
9
Before:
10
HON. LAURA TAYLOR SWAIN
11 District Judge
12
APPEARANCES
13
PREET BHARARA
14 United States Attorney for the
Southern District of New York
15 KAREN PORTLOCK
Assistant United States Attorney
16
JOHN R. WING
17 ABAGAIL ROSEN
Attorneys for Defendant Luzon
18
19 -Also Present-
20 Det. Elizabeth Marquez

Lea Harmon, PTSO (SDNY)
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.

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1 (In open court; case called)
2 MS. PORTLOCK: Good afternoon, your Honor. Karen
3 Portlock for the government. I'm joined by Detective ELizabeth
4 Marquez from the NYPD, as well as Pretrial Services Officer Lea
5 Harmon.
6 THE COURT: Good afternoon, Ms. Portlock, Detective
7 Marquez. And good afternoon, Officer Harmon.
8 MR. WING: Good afternoon, Judge. John Wing and Abby
9 Rosen for Mr. Luzon.
10 THE COURT: Good afternoon, Mr. Wing, Ms. Rosen. Good
11 afternoon, Mr. Luzon.
12 I understand the government has an application.
13 MS. PORTLOCK: Yes, your Honor.
14 The government received today a copy of a lab report,
15 which I've handed to your deputy, which sets forth the findings
16 of certain substances that were found on the defendant and
17 seized incident to arrest of this defendant earlier this week.
18 Consistent with the defendant's statement, it appears
19 that he was in possession of the amphetamine, which would be
20 the Adderall that he admitted using in the pretrial interview.
21 However, the unmarked glass bottle that was found on his person
22 did contain upwards of 10 grams of Fentanyl, which was the same
23 substance that resulted in the death of the victim as charged
24 in the complaint.
25 The government views this as significant information

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1 that warrants renewal of its application to detain the
2 defendant. This is, first of all, a significant amount of
3 Fentanyl. It is the government's understanding at this time
4 that trafficking upwards of 10 grams of Fentanyl specifically
5 carries a mandatory minimum sentence of 20 years, and the
6 government is considering additional charges.
7 Separate from that, I would also note for the Court
8 the glass bottle packaging is the same packaging that we
9 understand the Fentanyl was distributed to the victim in this
10 case. We also know from defense counsel's statement at the
11 last proceedings, the defendant was headed to take an exam on
12 the day when he was found with this substance on Columbia's
13 campus. We find this behavior incredibly dangerous to the
14 community, and we also would submit that possessing this
15 substance demonstrates the defendant not to be as represented
16 previously, a one-time distributor, or that this was some sort
17 of isolated transaction set forth in the complaint.
18 In fact, he is in possession of a significant amount
19 of the most deadly and dangerous opioid that is the cause of a
20 severe public health crisis in this country. We think this is
21 significant evidence of the defendant's dangerousness and
22 respectfully renew our application that he be detained.
23 THE COURT: Now, since we were here last, I understand
24 that pretrial services has approved arrangements for him to be
25 supervised under home incarceration at his mother's house in

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1 California, and so the bail asset now and the release
2 conditions contemplate his removal of some 3,000 miles from
3 both the Columbia campus and the area in which I assume you are
4 alleging he was conducting this activity. So I would be
5 grateful to your thoughts as to whether under these
6 circumstances the conditions that have been set can reasonably
7 be expected to effectuate community protection, or, conversely,
8 why detention would be necessary to do that under the
9 circumstances.
10 MS. PORTLOCK: Yes, your Honor. The government still
11 does not know at this point where these narcotics were
12 obtained. They were not in a prescription bottle. We don't
13 know where the defendant got them. The suggestion that he will
14 be removed from one state or one city and go to another
15 location where he is in a different place, I don't think there
16 is any reason to believe that he would not be able to conduct
17 the same activity.
18 THE COURT: But he'd be locked down in his house.
19 MS. PORTLOCK: Your Honor, he is in possession of a
20 substance that the government views as equivalent to a loaded
21 gun. The suggestion that he is not a danger to the community
22 because he would be in a location or would be under home
23 incarceration is just not sufficient.
24 THE COURT: Tell me why it's not sufficient. I mean,
25 using the loaded gun analogy, you seize the loaded gun. He was

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1 in possession of loaded gun. Very clearly, danger to the
2 community, carrying that around campus, potentially
3 distributing that on campus. No question it is a dangerous
4 situation at the time of arrest and thank goodness for arrest
5 under these circumstances, but that bottle has been taken away
6 from him. And then under these conditions he is to be locked
7 down in a house. If he leaves the house, it's only with
8 permission to do particular things. And there is a
9 radiofrequency monitor, you know, GPS or whatever, that will
10 flag that absence.
11 So, I understand the gravity of the situation. I
12 understand the public safety and prosecutorial concern from
13 which the "it's not sufficient" statement comes from, but I
14 need you to play out a scenario for me. I need you to
15 articulate the reasoning that leads you to put it that way.
16 MS. PORTLOCK: I don't think there is any reason to
17 believe, first and foremost, that the government -- the
18 government has no reason to believe that this is the only
19 bottle of Fentanyl the defendant has in his possession, for
20 one. We found one on his person incident to arrest that was
21 lawfully seized and we were able to test it. We were not able
22 to search his residence. We did not obtain consent to do that.
23 We have no idea where he's getting these narcotics. There's no
24 reason to believe that those narcotics cannot be obtained in
25 another state; that he, like many other drug dealers that have

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1 come before this court, have contact in other places. There
2 are other academic institutions out there. He's a medical
3 doctor. He grew up out there. There may be contacts. There
4 may be ways to continue to engage in this behavior.
5 Your Honor is also aware of the deficiencies and
6 problems that can happen with GPS monitoring. I understand
7 California is not even able to implement what we are able to
8 implement here, as far as GPS. There is a radiofrequency which
9 would only tell the pretrial services officer whether he is
10 home or not. We have no information even now to trust that the
11 home incarceration setting will be sufficient. And the
12 radiofrequency, the differences between that supervision and
13 GPS are something I'm still getting up to speed on, but they
14 seem to be not as strict.
15 So, again, I think that this is someone who has
16 demonstrated through his behavior and through possessing a
17 significant amount of narcotics that are absolutely lethal,
18 there is no reason to believe that this is conduct that he has
19 not been engaged in for some time, that he would not be able to
20 engage in out in California, and that he couldn't just walk off
21 and engage as the government has seen numerous times with other
22 defendants under GPS. And at that point he's 3,000 miles away,
23 and the government is very concerned about the danger to the
24 community from his conduct.
25 This is a situation respectfully, your Honor, that

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1 detention is absolutely warranted. This is not just any old
2 narcotics transaction, and I would use the term that defense
3 counsel used previously representing to your Honor. In fact,
4 now it appears that this has gone above and beyond, possessing
5 pure Fentanyl that has the power to kill. This is what he was
6 found on the day he was arrested and this is the substance that
7 killed Gabriel Tramiel.
8 For those reasons, your Honor, we respectfully request
9 the defendant be detained.
10 THE COURT: Is this a presumption case?
11 MS. PORTLOCK: It is, your Honor, because its of the
12 narcotics involved.
13 THE COURT: Thank you.
14 MS. PORTLOCK: Thank you.
15 THE COURT: Mr. Wing.
16 MR. WING: Your Honor, I don't think anything has
17 changed with respect to some evidence that he is a dealer or
18 distributor. I think we've heard from the government that they
19 were investigating this for awhile. He certainly was roaming
20 the campus at Columbia for quite awhile. I don't think there
21 is a, to use a trite phrase, scintilla of evidence, but I don't
22 think there is a scintilla of evidence that this man was going
23 to distribute to anybody. What is clear from the complaint
24 that assuming and accepting what's in it, that he delivered
25 some of this substance to somebody who was a close friend from

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1 boyhood, and I think that and the language in the complaint and
2 him calling the individual's wife the day he learned the bad
3 news, all of this reflects the reality of what we're dealing
4 with here. I regret to say, Judge, that the evidence to the
5 extent --
6 THE COURT: Would you mind pulling the microphone
7 closer to you?
8 MR. WING: Sure. I'm sorry, Judge.
9 THE COURT: You don't have to bend down. Just speak
10 out.
11 MR. WING: I regret to say that to the extent -- what
12 was found in this backpack is evidence that, unfortunately,
13 Mr. Luzon is an addict himself, and he may have been dealing
14 with another addict who happened to be the deceased. That does
15 not make him a danger to the community in any sense of
16 distributing material drugs of any kind to anybody. And
17 certainly since October when the event occurred, which is the
18 basis for the complaint, and now there is no evidence that he
19 did distribute anything to anybody else except, possibly based
20 on what was found in his backpack, to himself.
21 We have been concerned about that, and, as your Honor
22 knows, I think, all the conditions that were required by both
23 you and Judge Netburn have been met. They were actually met by
24 the end of Wednesday, and we endeavored to have him produced so
25 he could be on his way to California to his mother's home then,

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1 but that didn't work out. In any event, we have contacted a
2 treatment facility near his home, near his mother's home, I
3 should say, and have every intention of seeking treatment for
4 him for this particular problem, which I think is a far better
5 place for him to spend time than in a prison.
6 I do not believe that there is anything that this adds
7 to the danger in the community, and the fact of the matter is
8 he is going to be with his mother and in her home and on
9 lockdown and monitored by a pretrial service there, which the
10 pretrial service here have indicated to us they have absolute
11 confidence is capable of doing the job.
12 So, as we point out, he doesn't have this drug any
13 more, and I don't believe, your Honor, that facing the charge
14 he is facing and facing the -- we have not had the chance that
15 we plan to take after these bail issues are dealt with -- we
16 haven't had a chance to talk with the government about an
17 appropriate resolution of this case, but facing what he's
18 facing, I think it is absolutely impossible that this man is
19 going to do anything again with respect to this drug or any
20 other drug.
21 And I would respectfully request that he be
22 permitted -- we've made arrangements. We got a plane ticket
23 for him to fly tonight. All of the arrangements were made
24 through the pretrial services. All of the financially
25 responsible persons have been vetted and approved and signed

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1 the bond, and he will comply with all conditions that your
2 Honor set down, that Judge Netburn set down, and we would
3 respectfully request that he be permitted to be released today
4 to essentially go home, straight home from the -- I guess,
5 actually, it would be from the pretrial services. Thank you
6 THE COURT: Thank you. I would like to speak with
7 Officer Harmon. We will take a brief recess.
8 (Recess)
9 THE COURT: At this point I would ask Officer Harmon
10 to speak from the perspective of pretrial services.
11 MS. HARMON: Yes, your Honor. Some of the issues that
12 are a little disconcerting is the fact that defense counsel is
13 stating that they believe the defendant now had a drug problem
14 or has a drug problem. This is the first that we've heard of
15 it.
16 I think, unfortunately, the fact that the district in
17 California can only monitor him by radiofrequency, which, as
18 the government was stating, does only tell us when the
19 defendant exits and enters the residence. Without GPS, we
20 would have no way of knowing where he would be at any given
21 time, whether it be for a medical appointment or anything like
22 that. We wouldn't know to verify his whereabouts.
23 And if the defendant does have a substance abuse
24 problem with the drug Fentanyl, I would venture a guess that
25 that's a very significant problem that would probably need to

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1 be treated with residential drug treatment. That would be in
2 contradiction to the home incarceration. Those places aren't
3 on lockdown, and to put him in a facility with other addicts
4 could be a danger to the community. So those are all some
5 issues that we find are an area of concern.
7 Counsel, anything further? Mr. Wing? You were
8 starting to speak, Mr. Wing. Would you like to let
9 Ms. Portlock speak first?
10 Ms. Portlock.
11 MS. PORTLOCK: A couple of points, your Honor. I
12 would just confirm for the Court that this is a presumption
13 case. 18 U.S.C. 3142(e)(3)(A) does set forth that because this
14 is an offense for which a mandatory term of imprisonment of ten
15 years or more is prescribed under the Controlled Substances
16 Act, it is a presumption case.
17 The government would also note there is really no
18 evidence -- just to clarify for the Court, the government has
19 no evidence that the defendant's distribution activities are
20 confined to Columbia. He dealt this substance, the same
21 substance, to a friend, a friend who was living on the other
22 side of town. We have no reason to believe basically that it
23 is confined or would be confined to that particular community.
24 Of course, we are concerned that he was at Columbia and going
25 into Columbia facilities with a deadly drug on him that we

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1 believe was intended to be distributed.
2 We would also just respond again to defense counsel's
3 argument that this would never happen again. It happened in
4 October. That's the evidence that we have. We know that he
5 provided this substance to Gabriel Tramiel; that it resulted in
6 his death; and on Monday, which was any other day in the life
7 of this defendant, traveling to and from class he was found
8 with the same exact substance and a quantity of that substance
9 that is absolutely lethal.
10 So, for those reasons, your Honor, and for the
11 concerns also voiced by the pretrial services officer, we would
12 respectfully request the defendant be detained.
14 Mr. Wing.
15 MR. WING: Let me address the concerns of the pretrial
16 officer. The fact --
17 THE COURT: Speak up.
18 MR. WING: Sure. I'm sorry. It is my understanding
19 that he does nothing, goes anywhere out of his lockdown house
20 without the permission and consent of the pretrial services.
21 So if he were to go to see someone to seek treatment, that
22 would only be done if the pretrial services agreed. It's not
23 that he can just get up and walk out of the house to do that.
24 THE COURT: I think the pretrial services officer's
25 point is that if pretrial services were to concur that he needs

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1 treatment, the only circumstances under which that treatment
2 could be provided are ones that are not secure.
3 MR. WING: In that event, Judge, we would, I think, be
4 prepared to dispense with the treatment, unless you can have --
5 unless he had some doctor come into the home and deal with him
6 in his own home and help him in his own home. Our concern is
7 that he -- the issue really here, I think, from the get-go has
8 been is he a danger to the community because of what he has
9 been charged with in this complaint. And the prosecution has
10 suggested both below before Judge Netburn and to your Honor
11 that he's a drug dealer, and that he's out there a danger to
12 the community because he's distributing.
13 We have tried to explain, as best we can, that the
14 nature of the offense for which he is charged, the
15 circumstances of that offense, make it plain that this was
16 something going on between two friends who cared about each
17 other, who were close to each other; that this was not a
18 student who was out there selling drugs to make money or for
19 any other reason. That just wasn't the case. And we
20 respectfully submit, Judge, that hasn't changed.
21 THE COURT: Well, what's changed is that the
22 government, with respect, sir, has given me a lab report that
23 indicates that he had with him another bottle of Fentanyl, the
24 substance that had a $1,200 price tag on it in the transaction
25 with the friend, a lethal quantity, and three months later on

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1 campus in his bag, a person whose financial disclosures to the
2 pretrial services department don't indicate lavish available
3 cash flow for personal recreational purposes, and a drug whose
4 potency suggests that if, indeed, it were for personal use, he
5 would be an addict truly in need of treatment. So, the notion
6 that one might just forego treatment so as to avoid
7 complications undermines the suggestion to a certain extent.
8 MR. WING: But, your Honor, it seems to me it's a bit
9 of a conundrum. We think the fairest inference of the reason
10 he happened to have the substance on his possession at the time
11 of the arrest was because he was a user. That's, I think, the
12 fairest inference. I don't think that there is a better or
13 more probable inference that he was out there to distribute it
14 to students at Columbia. And as I understand it, the U.S.
15 Attorney's Office and the police have been investigating this
16 for several months without any evidence that that's -- that he
17 was doing what they're suggesting he was doing.
18 THE COURT: Well, the representation I think on
19 Tuesday night was that the investigation started in late
20 January or mid-January after the toxicology and phone search
21 results came in; not in October.
22 Am I correct, Ms. Portlock?
23 MS. PORTLOCK: That's correct, your Honor.
25 MR. WING: Well, I think the police, actually, the

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1 toxicology report or the autopsy report, the day after the
2 gentleman passed away, and to the extent that they had a
3 container with some of the fluid left at the time of his death
4 that was found next to his body, I guess it took them two days
5 to get this material analyzed. My guess is that probably the
6 police at least had it analyzed long before January.
7 In any event, what concerns me, Judge, is you are
8 presented a conundrum that, gee, he can't go to a treatment
9 center because it would be too much danger. So we think we
10 will just leave him in jail.
11 I respectfully submit and suggest that there isn't a
12 basis for thinking or finding that he is a danger to the
13 community. I, therefore, don't see the benefit of having him
14 in jail. We would be prepared to do whatever the Court or
15 pretrial services would recommend to deal with this other
16 aspect; but, as I say, I don't see that it's of any benefit to
17 society to keep this gentleman in jail while this case
18 progresses. I can't say I have familiarity with these drug
19 treatment centers, but I know some are inpatient, some are
20 outpatient; and we would certainly try to find, and we've done
21 the best we could this week, your Honor, to try to meet all of
22 the conditions that were set down both by you and Judge
23 Netburn.
24 I really do think that we could find a way to have
25 some medical people deal with Mr. Luzon and his problems

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1 without risking what the pretrial services officer was
2 suggesting; that he'd be in there with a whole bunch of other
3 addicts, and without risking that he's going to be out there
4 doing anything that's a danger to the community.
5 THE COURT: OK. I would ask that everyone just sit
6 quietly while I reflect and make my decision.
7 (Pause)
8 THE COURT: I have considered the matter carefully.
9 This is a presumption case. The defense has proffered evidence
10 of circumstances mitigating the risks to which the presumption
11 is directed, and certainly the bail conditions that were
12 previously approved were intended to mitigate that risk.
13 However, in light of the evidence of the drugs that
14 Mr. Luzon had on his person and the lack of ability to do close
15 GPS supervision in New York and other facts, which I will
16 recite in a moment, I find that, notwithstanding the proffer of
17 security and the home in California, the evidence is clear and
18 convincing that there is no condition or combination of
19 conditions that can protect sufficiently against danger to the
20 community, and, therefore, I am ordering detention.
21 So, specifically, I have completed an order of
22 detention pending trial that acknowledges that this is a motion
23 of the government pursuant to Section 3142(f)(1); that this is
24 a case in which there is a rebuttable presumption under
25 3142(e)(3) in that he is charged with and there is probable

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1 cause to believe that he committed an offense for which a
2 maximum term of imprisonment of ten years or more is prescribed
3 in the Controlled Substances Act of Title 21.
4 The Court has concluded that the defendant has
5 presented evidence sufficient to rebut the presumption, but
6 after considering the presumption and the other factors that
7 the Court has identified on the form, detention is warranted.
8 I find by clear and convincing evidence that no
9 condition or combination of conditions of release will
10 reasonably assure the safety of any other person and the
11 community.
12 I have checked off the form lines indicating that the
13 weight of the evidence against the defendant is strong and that
14 he would be subjected to a lengthy period of incarceration if
15 convicted. In the narrative findings I have written "Defendant
16 supplied lethal quantity of Fentanyl to an individual who died
17 after ingesting the drug.
18 Three months later on date of arrest, defendant was
19 found with a lethal quantity of the same expensive drug on his
20 way to class at an academic institution. The circumstances
21 strongly support an inference of access to this powerful and
22 dangerous drug, and active engagement in drug distribution,
23 and, thus, constitutes a clear and convincing evidence of
24 danger to the community.
25 This danger cannot be sufficiently overcome through

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1 conditions because defendant would have to be under home
2 incarceration and supervision in California where he cannot be
3 supervised via GPS and where he may be able to call on drug
4 connections established through his New York community, and
5 thereby endanger the local community in California.
6 Any need for drug treatment would increase the risk of
7 exposure to other users and the likelihood of need to be under
8 unsupervisable conditions.
9 Accordingly, I am order Mr. Luzon detained.
10 I am going to print and distribute copies of this
11 order. Ms. Portlock and Officer Harmon, does it sound as
12 though I have done the paperwork that is necessary?
13 MS. PORTLOCK: I believe so, your Honor.
14 MS. HARMON: Yes, your Honor.
16 This is a new form of a form, so I wanted to make
17 sure.
18 Ms. Ng will distribute copies of the order.
19 Mr. Luzon, I regret that I am constrained to detain you. I've
20 explained my decision.
21 Is there anything else that we need to take up
22 together this afternoon?
23 MS. PORTLOCK: No, your Honor. Thank you.
24 THE COURT: Thank you. We're adjourned.
25 (Adjourned)

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14 - Transcript of Hearing Held March 3, 2017 - Avinoam Luzon Before Judge Laura Taylor Swain

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14 - Transcript of Hearing Held March 3, 2017 - Avinoam Luzon Before Judge Laura Taylor Swain

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Case 1:17-mj-01418-UA Document 14 Filed 03/17/17 Page 1 of 18 1

1 UNITED STATES DISTRICT COURT

7 New York, N.Y.

20 Det. Elizabeth Marquez

SOUTHERN DISTRICT REPORTERS, P.C.

1 (In open court; case called)

2 MS. PORTLOCK: Good afternoon, your Honor. Karen

3 Portlock for the government. I'm joined by Detective ELizabeth

4 Marquez from the NYPD, as well as Pretrial Services Officer Lea

6 THE COURT: Good afternoon, Ms. Portlock, Detective

7 Marquez. And good afternoon, Officer Harmon.

8 MR. WING: Good afternoon, Judge. John Wing and Abby

9 Rosen for Mr. Luzon.

10 THE COURT: Good afternoon, Mr. Wing, Ms. Rosen. Good

11 afternoon, Mr. Luzon.

12 I understand the government has an application.

13 MS. PORTLOCK: Yes, your Honor.

14 The government received today a copy of a lab report,

16 of certain substances that were found on the defendant and

17 seized incident to arrest of this defendant earlier this week.

18 Consistent with the defendant's statement, it appears

19 that he was in possession of the amphetamine, which would be

20 the Adderall that he admitted using in the pretrial interview.

22 did contain upwards of 10 grams of Fentanyl, which was the same

23 substance that resulted in the death of the victim as charged

25 The government views this as significant information

SOUTHERN DISTRICT REPORTERS, P.C.

1 that warrants renewal of its application to detain the

2 defendant. This is, first of all, a significant amount of

3 Fentanyl. It is the government's understanding at this time

4 that trafficking upwards of 10 grams of Fentanyl specifically

5 carries a mandatory minimum sentence of 20 years, and the

6 government is considering additional charges.

7 Separate from that, I would also note for the Court

8 the glass bottle packaging is the same packaging that we

9 understand the Fentanyl was distributed to the victim in this

10 case. We also know from defense counsel's statement at the

11 last proceedings, the defendant was headed to take an exam on

12 the day when he was found with this substance on Columbia's

13 campus. We find this behavior incredibly dangerous to the

14 community, and we also would submit that possessing this

15 substance demonstrates the defendant not to be as represented

16 previously, a one-time distributor, or that this was some sort

17 of isolated transaction set forth in the complaint.

18 In fact, he is in possession of a significant amount

19 of the most deadly and dangerous opioid that is the cause of a

20 severe public health crisis in this country. We think this is

21 significant evidence of the defendant's dangerousness and

22 respectfully renew our application that he be detained.

23 THE COURT: Now, since we were here last, I understand

24 that pretrial services has approved arrangements for him to be

25 supervised under home incarceration at his mother's house in

SOUTHERN DISTRICT REPORTERS, P.C.

1 California, and so the bail asset now and the release

2 conditions contemplate his removal of some 3,000 miles from

4 alleging he was conducting this activity. So I would be

5 grateful to your thoughts as to whether under these

6 circumstances the conditions that have been set can reasonably

7 be expected to effectuate community protection, or, conversely,

8 why detention would be necessary to do that under the

10 MS. PORTLOCK: Yes, your Honor. The government still

11 does not know at this point where these narcotics were

12 obtained. They were not in a prescription bottle. We don't