Case 1:24-mj-02422-UA Document 8 Filed 07/03/24 Page 1 of 55

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

----------------------------:

UNITED STATES OF AMERICA, :

: Docket #24-MJ-2422

Plaintiff, :

v. :

JUSTIN HEATH SMITH, : New York, New York

Defendant. : June 28, 2024

----------------------------:

TRANSCRIPT AND STATUS CONFERENCE HEARING

BEFORE THE HONORABLE ROBYN TARNOFSKY

UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

For Plaintiff: UNITED STATES ATTORNEY'S OFFICE

SOUTHERN DISTRICT OF NEW YORK
BY: Getzel Berger, AUSA
One St. Andrew's Plaza
New York, New York 10007

For Defendant: THE LAW OFFICES OF

THOMAS ANDRYKOVITZ
BY: Thomas Andrykovitz, Esq.
Michael Baldassare, Esq.
Jeffrey Hawriluk, Esq.
260 Madison Avenue
New York, New York 10016

Proceedings recorded by electronic sound recording;

Transcript produced by transcription service

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THE DEPUTY CLERK: Good afternoon. Judge

Robyn Tarnofsky is now presiding.

THE COURT: Please be seated.

THE DEPUTY CLERK: Today we have USA v.

Justin Heath Smith; 24-MAG-2422.

Counsel, please make your appearance for

the record. Government first.

MR. BERGER: Good afternoon, Your Honor.

Getzel Berger for the government. I'm joined here

by FBI Special Agent Matthew Deragon, and our summer

law student intern, Rachel Blatt (phonetic).

MR. BALDASSARE: Good afternoon,

Your Honor.

Michael Baldassare, Jeff Hawriluk and Tom

Andrykovitz on behalf of defendant, Justin Smith,

who is seated to my right.

THE COURT: Good afternoon, everyone.

Thank you for being here.

Okay. Mr. Smith, you are here today

because you've been charged with certain crimes in a

complaint.

Actually, we should just start -- can I

have the date and time of the arrest?

MR. BERGER: Yes. This morning at 8 a.m.;

so June 28th.

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THE COURT: Okay. And the time of

presentment is 3:40.

So my name is Magistrate Judge Tarnofsky,

and you're here because you've been charged with

certain crimes in a complaint. The purpose of the

proceeding today is to advise you of certain rights

that you have, to inform you of the charges against

you, to consider -- you have private counsel, so we

don't need to consider whether counsel should be

appointed, and to decide under what conditions, if

any, you should be released pending trial.

I'm going to first explain certain

constitutional rights that you have.

You have the right to remain silent.

You're not required to make any statements. Even if

you've already made statements to the authorities,

you don't need to make any more statements. And any

statements you make can be used against you.

You have the right to be released either

conditionally or unconditionally pending trial,

unless I find there are no conditions that would

reasonably assure your presence at future court

appearances and the safety of the community.

If you're not a U.S. citizen, you have the

right to request that a consular official from your

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country of origin be notified of your arrest. In

some cases, a treaty or other agreement may require

the U.S. government to give that notice whether you

request it or not. And I'm required by law to tell

you this, even if you are a U.S. citizen and it

doesn't apply to you.

You have the right to be represented by a

lawyer during all court proceedings, including this

one and during all questioning by the authorities.

You have the right to hire your own attorney, but if

you can't afford one, I will appoint one here today

to represent you.

Okay. Mr. Smith, I have in front of me the

complaint which contains the charges against you.

And the complaint charges in Count One, the receipt

and distribution of child pornography from at least

March 24, 2024 through at least March 28, 2024 in

the Southern District of New York and elsewhere,

receiving and distributing child pornography, in

violation of Title 18 U.S. Code §§ 2252A(a)(2)(B),

(b)(1), and 2.

Count Two, possession of child pornography

from at least on or around March 24, 2024 through at

least April 21, 2024 in the Southern District of New

York, in violation of Title 18 U.S. Code §§

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2252A(a)(5)(B), (b)(2), and 2.

Counsel, have you received a copy of the

complaint?

MR. BALDASSARE: Yes, Judge.

THE COURT: And have you reviewed it with

your client?

MR. BALDASSARE: We have, Your Honor.

THE COURT: Okay. Mr. Smith, you have the

right to a preliminary hearing. And at the

preliminary hearing, the government would have the

burden of establishing that there is probable cause

to believe that the crime for which you're being

charged was committed, and that you are the person

who committed that crime. You or your lawyer would

be entitled to cross examine any witnesses and

introduce evidence.

If you're in custody, you have the right to

the preliminary hearing within 14 days. If you're

out of custody, you have the right to have the

preliminary hearing within 21 days. But a

preliminary hearing won't be held if before the date

it is supposed to happen, you're indicted by the

grand jury, or the government files a document

against you called an information.

I'm going to set the preliminary hearing

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date at the conclusion of the proceeding.

Okay. So since we have a complaint and not

an indictment, we are not doing an arraignment and

we'll move straight to the question of bail. And

I'd like to ask the government what its position is

regarding release pending trial.

MR. BERGER: The government seeks

detention, Your Honor.

THE COURT: And is there consent to

detention?

MR. BALDASSARE: No, Judge.

THE COURT: Okay. Then on what basis,

Mr. Berger, is the government seeking detention?

MR. BERGER: Danger.

THE COURT: Danger.

So you, I'm sure, are aware that you can't

seek detention based on danger only. What provision

of 18 U.S.C. § 3142(f) provides the authority for

holding a detention hearing?

MR. BERGER: So the government moves for a

detention hearing under 18 U.S.C. § 3142(f)(1)(e)

Because the defendant is charged with felonies that

involve minor victims, and under 18 U.S.C. §

3142(e)(3)(E) there is a presumption that no

condition or combination of conditions will

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reasonably assure the safety of the community. And

this presumption applies because the defendant is

accused of violating 18 U.S.C. § 2252A(2), which is

one of the enumerated statutes in § 3142.

THE COURT: Okay. Thank you.

So, Mr. Smith, in this case, it's called a

presumption case. The government has asked that you

be detained. The government is entitled to make

this request because of the nature of the charges

against you. You have been charged with a violation

of crimes involving minor children, so I am granting

the request for a detention hearing.

I now have to determine whether there is

any condition or combination of conditions of

release that would protect the safety of the

community and reasonably assure your appearance at

trial. In making this determination, I have to

consider several factors: The nature and

circumstances of the charged offense, including

whether the crime involves a minor victim, the

weight of the evidence against you, your personal

history and characteristics, including your

character, family ties, financial resources,

community ties, past conduct, criminal history, and

whether you were on probation or parole at the time

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you allegedly committed this crime. I also have to

consider the nature and seriousness of the danger to

anyone or to the community that would be posed by

your release.

This is a presumption case. And so because

you are accused of one of several specified crimes,

there is a presumption that no conditions of release

will reasonably ensure the safety of the community;

however, the presumption is rebuttable, and the

government ultimately bears the burden of

establishing by clear and convincing evidence that

you're a danger to the community or establishing by

a preponderance of the evidence that you are a risk

of flight.

I will now hear from counsel, starting with

the government. Please tell me why you believe

detention is warranted in this case.

MR. BERGER: Thank you, Your Honor.

The defendant is accused of having sent,

received and possessed hundreds of videos of child

pornography. These videos show young children being

raped. But that's only the beginning. There's also

overwhelming evidence that he's a hands-on predator.

So far, the FBI has been able to access the

defendant's messages for only four months, January

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through April of 2024, but the messages show that in

those four months alone, the defendant had sex with

several 15-year-olds, tried to have sex with younger

children, including 12- and 14-year-olds, and made

plans to meet with a man who would make a 7-year-old

child available to the defendant for sex, for rape.

I won't repeat everything we said in our

papers, but I'll briefly touch upon both the charged

conduct and the uncharged conduct. But the key

point that I want to convey is that the defendant's

conduct is recent, it's prolific, it involves

action, not just talk or videos, and most of it

happened from the comfort of his own home.

Starting with the charged conduct,

possession and distribution of child pornography.

And the reason I'm starting here is because it's

important not to lose sight of the seriousness of

the charged conduct, even setting aside the even

more serious uncharged conduct.

This is not a case where someone sat

passively at a computer screen and watched an image

or video containing child pornography. The

defendant actively sent, solicited, received and

stored hundreds of these videos. These videos

involve children as young as infants, and these were

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violent videos, nightmarish videos. We included

descriptions of two of these videos in our

submission, and I won't repeat them, but one of them

shows a 10-year-old tied up, beaten and raped, and

the other one shows an infant being violently raped.

Every time the defendant shared one of these videos,

he re-victimized one of these raped children.

And it's also important to focus on the

weight of the evidence on the charged conduct.

There can be virtually no doubt that the defendant

was the user of the "Anon Anon" Telegram account

that sent and received these videos. And, again, I

won't repeat everything in our submission, but

suffice it to say that when the FBI seized his phone

and sent a message to the "Anon Anon" Telegram

account, a pop-up notification appeared on his

phone. That's the charged conduct.

But turning to the uncharged conduct, and

in our written submission we laid out the legal

authority for considering uncharged conduct in this

context, our letter had just a preview of some of

these messages found on the defendant's phone. But

that preview, which, again, spanned a short snippet

of time -- four months -- shows that the defendant

is a prolific hands-on offender.

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He appears to have had sex with a

15-year-old several times, including a threesome

with another adult man that the defendant recorded.

He appears to have had sex with at least one other

15-year-old. He asked the third 15-year-old to

produce child pornography for him, which the minor

did, and sent it to the defendant. He asked a

14-year-old to send him pictures of his 10-year-old

sibling. He tried to meet up with a 12-year-old

during his travels in Florida, and appears to have

exchanged pornography with the 12-year-old. And,

most disturbingly, he made concrete plans to have

sex with a 7-year-old child, including discussions

with the child's father about booking an Airbnb and

about the child getting some sort of doll.

He even invited others, including an

undercover FBI agent, to join in. Were it not for

the FBI executing a search warrant at his house on

Sunday, before that was about to happen, he may well

have gone through with it. Your Honor, this conduct

leads to only one conclusion, that the defendant is

a danger to children. He's a danger to children

online. He's a danger to children offline. He's a

danger to children anywhere.

And I want to address head-on the defense's

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argument for home detention. Home detention will

not keep the community safe because that's exactly

where the defendant committed this conduct. That's

where he kept and shared his child pornography.

That's where he hosted minors for sex, and that's

where he even had the built-in cameras that recorded

one of these sessions.

Simply put, he doesn't have to be outside

the house to be a danger. And as we said in our

submission, because of his high profile, he doesn't

have to chase after child pornography or child sex

abuse. It can come to him, including, for example,

the episode of the father and 7-year-old child.

That's why confining him to his house does not

lessen the danger in any meaningful sense.

And for the same reason, restrictions on

electronic communications will also not protect the

community. The defendant is clearly a sophisticated

operator. He is very familiar with the tools that

can be used to avoid detection. For example, he

used platforms like Telegram, which are not amenable

to legal process. He used anonymous accounts to

hide his identity. He sent disappearing messages

when he was discussing his illegal activities. And,

importantly, he deleted his Telegram and Telegram

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account history when he found out that the FBI was

investigating him.

And on the topic of electronic activity, I

think everyone in this room will agree, as we said

in our submission, that Pretrial Services does a

heroic job of monitoring online activity, but

they're not super human, and neither is the FBI. At

the end of the day, nothing can prevent the

defendant from getting a new phone, setting up

another anonymous account and picking up right where

you left off, which is sharing child pornography and

preying on children. Only detention can ensure the

safety of the community.

THE COURT: Thank you.

Counsel?

MR. BALDASSARE: Yes, Judge.

Given that my client has no criminal

history and faces being sent to the disgusting,

inhumane conditions at MDC, which we talked about,

I, kind of, have quite a bit to say, particularly

given the government's, I think, wrongly incendiary

filing.

So here's what I would say: I would say

that the presumption certainly is rebutted in this

case, and, therefore, the government is now held to

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the standard for clear and convincing evidence on

danger. And by the way, Judge, I really think --

and I think the government would agree -- that today

is really about danger. I'm not hearing a lot about

risk of flight.

THE COURT: I don't think anybody here is

thinking that he's a flight risk.

MR. BALDASSARE: Okay. So I'll move right

to that.

So we know from Mercedes and the other

cases, Dominguez and Cross, that simply his time in

the community, his long-term, ten-year relationship

with the proposed third-party custodian who's been

vetted -- I don't know what Pretrial thinks of if

he's okay. We know that his work, his citizenship,

his self-surrender -- we know that almost as a

matter of law, based on the cases, that's sufficient

to rebut the presumption and put back on the

government the burden of clear and convincing

evidence for danger, which I think is what we just

heard the evidence of.

And here's what I would say, Judge: The

government's submission certainly reads like a

compelling tale. The allegations are serious, the

comments are serious, and aside from the fact that

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they're untested, the fact of the matter is, it is a

group of facts woven together in a way to be more

compelling than it really is.

For example, after they talk about why they

believe the "Anon" account is him, what we get

thereafter is instead of the text exchanges, instead

of "Anon," or whatever the name is, they get Smith,

Smith, Smith, Smith, Smith. But I've not seen

anything that says it was an account attributable to

him. I think that's unfair. I think it's

disingenuous.

I'm not saying they're liars. I'm not

saying they're unethical, but it's wrong, and they

have to meet a high degree of certainty. That's how

the Second Circuit has described it. So we have

Smith, Smith, Smith, as if we know it's him.

Here's what I would say about him being

"Anon" -- and this is something that is critical to

every single paragraph. And I'm going to talk about

these. I'm not going to run from their submission.

Here's how we know the government thinks

he's "Anon": Someone who got popped with a ton of

child porn on his phone said so. That's number one.

We don't know who this person is. This

isn't someone who in a search warrant they're able

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to say, this person's been reliable a million times

before. Actually, we know that person is

presumptively not reliable because this person got

arrested with a phone loaded with child porn and is,

within pretty short order, trying to deliver heads.

And how do we know it's short order?

Because their submission says that they seized his

phone at some point in April, and we know that

they're at our client's house on April 21st. That's

the one way they know it. And they think that gives

a high degree of certainty. I doubt it. They would

never charge a case based just on that.

The other way they say is that they sent a

message from Telegram and a notification popped up

on my client's phone. Well, respectfully, Judge, I

would think anybody -- and they said themselves he's

got a big Internet presence. He's a famous actor or

performer, however we want to call it. I think

there are people in that industry -- and,

respectfully, I think everybody under the age of

20 -- he's older than that. Notifications explode

on people's phones.

So the fact of the matter is, they sent

something and something showed up on Telegram,

which, by the way, there's no text. It's not the

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message they sent. They don't say that. They don't

say it shows it's from -- say if it was me, from

Mike Baldassare. They say, we sent a message and

something came up. Okay. But you're looking to

send a guy to a place that we all know is one of the

worst places in the country. You're looking to meet

a high degree of certainty. I think we have to go

or come to this Court with something a little bit

more compelling than something that happens all day,

every day on everybody's phone, except maybe mine

because I think I'm on one social media platform.

And we know that Mr. Smith has a humongous social

media -- excuse me -- social media presence on a

number of platforms.

So let's look at the -- if I can start on

page 1, page 1 talks about the fact that they seized

someone's phone and that the two users exchanged

hundreds of videos. Okay. Well, they described

two. I don't see written here any allegation that

the person whose phone they have, the cooperator --

did he send them or receive them? It doesn't matter

full possession or receipt.

But the fact of the matter is, somebody who

is sending it out there -- we don't know if it was

solicited. We don't know if this person sent it.

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All we know is the artfully drafted, with all due

respect, they exchanged hundreds of videos. They

don't say here that the "Anon" person sent them.

That's number one.

Number two, he says -- and this is where

the individual Target Telegram User-1 -- and by the

way, Judge -- and, again, just to talk about how

this is drafted because it reads like, oh, my God,

if I didn't give this a close read, I shouldn't have

brought anything. With all due respect, they should

have come with a pad and ported him through. But

they don't call him suspect, punitive defendant,

cooperator. This person who they arrested with tons

of child porn is known as Target Telegram User-1, as

if that somehow changes who this person is or what

his motivations are. So that's how -- that's what

they say in the second paragraph there after they've

described these videos.

Okay. So that's, kind of, where the

charged conduct discussion ends. And just like

we're not here about risk of flight, respectfully, I

don't really think we're even here about the charged

conduct. I think this is a very different hearing

if my client was charged with what is unfortunately

an all-too-common charge in federal court. I'm not

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saying those charges aren't serious. Of course they

are. But the truth is, if we were here just on a --

and I don't mean any disrespect to victims. If we

were here on a run-of-the-mill child pornography

case, I think this hearing is very different. And I

think we easily would -- we'd still have a

presumption to rebut, but it would be very

different.

This case is really about all of the things

in the letter that are flimsy when tied to my

client, and they don't really hold up to scrutiny.

And I think, with all due respect, the government

says that the charge -- the conduct is overwhelming

and that it is somehow beyond reproach.

Well, here's what I would say: Other

relevant conduct, we have the summary paragraph,

right, with the word "apparent." By the way, this

overwhelming evidence -- my colleague, who I have a

good relationship with -- here's what I heard a lot

today: "Apparent, apparent, apparent." And it's

all over their submission, "apparent." Okay. A lot

of things are apparent, but that doesn't mean it's

clear and convincing evidence. Less than beyond a

reasonable doubt, but way more than a preponderance.

So then they go on page 2 to the individual

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allegations. This is the threesome that's recorded

that they say -- and I don't challenge this. I

don't challenge their proffer that it was found on

his iPhone, but it's an apparent 15-year-old. I

haven't seen it. It's not an apparent 10-year-old

where anybody could watch it and say, okay, that

person's 10 years old. A 15-year-old could easily

be a young 18, 19, or 20-year-old person. They're

not experts. The government's not experts.

I don't see somebody saying, oh, I've

looked at this. In the old days of child

pornography cases, you would have experts who could

look at femur length or facial recognition or

facial. We don't have any of that. We have a

bunch -- respectfully, we have the government

saying, hmm, we think that person looks 15. But

they say that it's corroborated by -- let's see --

by a message "inviting" -- their words -- "inviting"

somebody else to the threesome. But that's not what

this says.

This says "Smith," which, to my

understanding, is not Smith. It's "Anon." But I'll

read it as Smith for purposes of today.

"SMITH: Hey."

Other User. I don't know who that is.

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They don't have any indication on who that second

person is.

So it goes:

"SMITH: Hey.

"OTHER USER: Sup?

"SMITH: I have a boy.

"SMITH: 15."

Now, what I don't know is -- I don't have

any representation as to why that conversation,

which we don't know who it is, they decided that

that, A, is an invitation. Doesn't sound like one

to me. And B, they say that that corroborates the

video. And that's why this takes, respectfully, a

critical eye. And we did it as fast as we can

because I wasn't going to let him go to MDC and then

pull him back to try to overcome a bad ruling.

They say that that corroborates the video

they found. Why? Because it's somebody saying

something to somebody else about a 15-year-old boy?

I've seen nothing. Maybe they have it. But the

record today, nothing about that, that Smith that

meets the standard. We don't know who the other

person is. And we don't have timing. Where's the

metadata on the video? This says in April 2024.

Okay. I don't have metadata. Was that video of the

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threesome?

Let's take them at their word, that it's my

client and two other males. Was it made in April of

2024? Was it made in January of 2021?

Let's say they found it on his phone. And,

again, it's not an invitation, but they're pushing,

they're pushing, they're pushing because what they

want -- respectfully, what they want the Court to do

is to do this, is to say, wait a minute, I hear --

and I know you're not going to, but I hear

incendiary allegations, horrible allegations. I'm

not even -- look. It makes everybody sick. But

that's not what we're here for. This isn't a quote

to discuss whether or not that's good or bad,

because we all know it's bad.

So that's what they say about the

threesome. And I don't think that that's

overwhelming evidence of anything. I think it is

barely, potentially, maybe preponderance.

Then they say, end of page 2 top of page 3,

"Smith bragged about having had sex with at least

one additional 15-year-old minor." Okay. So here

again we have -- as I understand it, this is "Anon"

or some other name. They don't give the name, like

the handle or the screen name. But this one's on

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something called Session, which, you know, I was not

familiar with, but now I understand Session is a

messaging app.

They say Smith bragged to another

individual about sex with two 15-year-olds, having

sex with them once a month or so. Smith -- again,

maybe "Anon," maybe some other name -- added that he

was both of their firsts and trained them. Well,

again, this is talking about something, something

bad if it happened, and I still don't know who it

was that says it, except for what somebody said and

a notification that doesn't meet clear and

convincing.

Next one. Smith solicited and obtained

production of child pornography from an apparent

15-year-old. Now, for this one, there's no

pictures, there's no video. There's nothing. There

is Smith asked an apparent 15-year-old on Telegram,

who somebody wrote to him and said -- and again, I'm

saying "him," the user, okay, but I'm going by what

they say, "Smith," that he was at least 15 to send

me some vids. The minor recorded a video of him and

performing a sexual act. And they say, send it to

"Smith." Doesn't say whether they have the video or

not. Doesn't really -- and so we can't see what

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this person looks like. But even if they did, it's

still linked to this ambiguous account that they say

is him based on two things that I don't think are

compelling.

Next is Smith planned to meet an apparent

14-year-old minor for sex. This one basically has

the same flaws as the other one. This one has some

more details in here. There's not a lot of quotes.

I don't know if the quotes would give any ability to

question them, but let's assume that the description

of the conversation is as they are. I think that

has the same problems.

Then we have this one. Smith asked an

apparent 14-year-old minor to send pictures of his

10-year-old sibling. Okay. Let me say it clear.

There's no way this is a 14-year-old on the other

end. Anybody, respectfully, can read it.

So we're supposed to believe that a

14-year-old is asking him, do you have some kids?

They'd be so lucky. Would you have sex with kids?

And here's the one that I think puts the real

question to this. A 14-year-old says, what's your

craziest kink?

Respectfully, Judge, I know that young

people might be more sophisticated and more worldly

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now than they were when I was a kid. Read this,

Judge. This is not a 14-year-old person. There is

no questioning of that in here. They state it

pretty much as fact, except they have to give up the

"apparent." So I don't think that that is clear and

convincing evidence.

And by the way, Judge, clear and convincing

evidence can't be zero for not compelling. Zero

plus zero plus zero plus somehow equals clear and

convincing evidence. If they have a problem, and

each of them has a problem cumulatively, they have a

problem.

Then we go to page 4, tried to entice an

apparent 12-year-old. Again, more of the same.

This is a conversation. They say sends an image.

Okay. But we have no image. And that image might

be nude, might be child pornography, might not be

child pornography. But what we don't know is that

that image is of this person.

Now, here's why I'm saying that, and it

might sound like I'm making light of somebody

sending child pornography. Let's say this isn't an

apparent 12-year-old. Let's say it's a grown man

sending him child pornography. Bad. A crime. But

here's the problem, that's not what they say it is.

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They want this Court to interpret that as my client

enticing him to meet for sex. They overplayed their

hand with this. And that's why we know that we're

really here about this and not about the charges.

And that one, as far as I can tell from the

record here today -- and I certainly hope I don't

hear a new document or fact dump -- they're allowed

to proceed by proffer. Just as a side note, they're

allowed to proceed by proffer without giving anybody

much of anything. But I would say two things: The

proffer should be closely related to the offense.

Now here, these offenses are certainly closer than

if he was charged with bank robbery and they accused

him of sexual assault five years ago.

But here's why they aren't closely linked,

because child pornography is extraordinarily

different in terms of sentencing, exposure,

mandatory minimums, methods of proof, and just in

general, the severity attached to it under the law

than a contact offense. We're here because of

uncharged, untested conduct that the government has

put in a way that I just don't think comes across as

compelling. So that's the one where they say he

tried to entice for that and talking to the person

about coming to Miami.

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And by the way, this one also talking to

someone in Miami, 12 years old. I don't think so.

I don't think it sounds like a 12-year-old. I could

be wrong, but they have the burden to show that to a

high degree of certainty, that this person is

12 years old, and I don't think it shows it.

Then we have the allegations that prompted

the government to act expeditiously in their view --

and it was -- in April, and that is -- the headline

for this one: Smith planned to meet a father and

his purported 7-year-old child for sex.

So, first of all -- and, again, this is how

the government overplays its hand. Today the

government told you that my client is the one

saying, you know, that -- told him, I have a friend

I want to meet. I think it was the discussion of

the doll. I could be wrong about this because we're

trying to go through this, but I don't think he's

the one who said some of the things that the

government says he said here, right, or that it's

even attributed to him.

But this one, it says, "a father." How do

we know? How do we know this isn't just somebody

talking? This isn't maybe First Amendment-protected

speech. I'm not saying that. But what I'm saying

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is they're asking you to conclude that there's a

high degree of probability based on this, that it

was a father, that he was bringing a 7-year-old,

that he is the person, my client is the person

behind the text.

And then they have this. And, again, this

is how I'm saying that this is based on a lot of

assumptions that simply don't fly.

Okay. When asked for details, Smith, even

though it's not -- it's some unidentified handle

that we've yet to hear is even linked to him -- when

asked for details, Smith responded "14 minus 7."

And then the government says, "which equals 7." I'm

not making fun of them for acknowledging that 14 - 7

equals 7. What I am saying is it says "14 - 7."

Okay. Is it a dash? Is it a minus?

And, again, I'm nitpicking because they're

asking you to send my client indefinitely to a place

that -- and this is in our brief -- has been

described as inhumane and worse than Colombian

prisons. So, yeah, I do respectfully take issue

with them saying, we, the government, think that

"14 - 7" means a 7-year-old and that the dash is a

minus and not a dash.

You know what I haven't heard? Haven't

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heard anything in here that that's code speak in

this community. These guys seem to speak pretty

freely. I don't know that we need code. I have no

idea what that means. I don't have to know what

that idea means. They have to know what that idea

means. There's nothing in here that says, as agents

often do, based on my experience with handling this,

this is how this is code. We don't hear anything

from this supposed Telegram user, who's really going

to be a defendant, that that's how they talk about

it.

Then they say, similarly, where Smith --

which we don't know if it's him -- wrote to a third

individual, "I may have one when I get home from the

Caribbean 21 - 14."

Okay. Again, the difference is 7, but for

clear and convincing evidence that that's what

they're talking about when all of their other stuff,

all their other evidence that they say has an age.

So I don't know what that means.

Basically, the same thing for saying he

definitely would have sex with a 7-year-old. Again,

the headline reads, "Smith." What I'm not hearing

is whether -- and by the way, this, Judge, is on

Session. And some of the other ones were on

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Session, and there was a -- there's another one

coming up -- no. Actually, it's Session and

Telegram, which they talked about. And there's a

third one I can't find right now that I've never

heard of.

Oh, Snapchat. I've heard of that. But

here's what I don't hear: I don't hear them linking

those, even allegedly, to my client the way they say

they linked him to the Telegram account. I don't

hear anything that the anonymous or the source and

future defendant says, oh, I know that Telegram

account -- I mean the Snapchat account is him; oh, I

know that that Session account is him.

I don't hear anything about, oh, we

messaged it and it lit up, et cetera, et cetera.

They can blame my client for purportedly deleting

everything. Well, okay. Prove it. But don't prove

it with him sitting, eating maggot food and not

being able to shower in MDC. Prove it.

So then they go off the execution of the

search warrant, which apparently what happened here

is they had the Target Telephone User's account.

They had it, and then the "Anon Anon" stuff

disappeared, I guess, before they locked it down or

put it in a Faraday bag or whatever they do. Okay.

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The stuff disappeared.

Based on that, there's overwhelming

evidence of guilt? I don't know. I don't know

anything about this other person. I don't know

anything about his phone. I don't know who he dealt

with. We could just as easily stand here and say,

well, he got popped. Maybe he told somebody else

and they deleted it because, guess what, uh-oh, my

phone is now with the FBI and you are all over it.

Now, that's not like me, defense attorney,

making something up because here's what we do know:

That person's phone had a ton of CP on it. They

don't say he was the only one -- they don't allege

that he's the only one who he traded with. So we

have a guy whose phone is loaded with CP, who is in

trouble, who is trying to bring them heads in a

relatively quick order, and stuff gets deleted.

So here's also what I didn't hear: I

really didn't hear why none of the conditions that

we've proposed wouldn't work. I haven't. I get it.

He was home they say when he committed the crime.

Okay. We let people who commit street crimes out

all the time. They were on the street. So what. I

just don't think that's a compelling analogy.

He was home. He could have easily been on

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the street doing a drug deal. If he was committing

a murder, he's probably staying in, but doing a

million other things, all kinds of different federal

crimes.

What about money launderers? Where are

they? They're at work or at home. When they get

out, where are they? At work or at home. By the

way, probably on a computer with no computer

restrictions because nowadays that's where the money

laundering happens. I don't hear the government

saying in any of my money laundering cases, well, he

has to be sent to MDC because, when he defrauded

investors, he was at a computer, and we don't want

him near a computer. It just doesn't happen.

I get it. These are incendiary

allegations. They're troubling allegations. The

videos which -- I take them at their word that

that's what's in those videos. But the fact is,

saying he's at home is just no way to deal with that

part of our bail package.

I don't hear them saying that GPS doesn't

work, that he is going to somehow escape. I don't

hear them saying that he's going to somehow -- what

is he going to do, get out, get a hotspot, get

Verizon to come in and put it in, while, by the way,

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his third-party custodian and partner of ten years,

no criminal history, U.S. citizen, works, works from

home. I don't understand that.

I get it. They want him in MDC. I

understand that. But our bail package offered

24-hour house arrest, GPS monitoring. And by the

way, to the extent -- and I've seen some courts do

this -- that there's costs associated with it,

they'll order the defendant to pay. Okay. We'll

pay.

24-hour house arrest, GPS monitoring,

which, by the way, we have to all assume works

because what are we saying, that we're doing

something that we're presuming doesn't work, or that

there's a high degree of certainty and probability

that GPS doesn't work?

No visitors to the home. Again, okay. His

third-party custodian lives with him.

And by the way, before I go with the rest,

what have they shown that my client won't comply?

He knew about this investigation -- and they won't

challenge this. He knew about this investigation

for months. He gave them the password to his phone

to expedite the investigation because -- and I think

everyone will agree with this -- iPhones are not

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easy to crack. Would they have cracked it?

Probably. He gave them the password.

They asked -- at some point, the government

called counsel and said, we would like your

client -- he's uncharged. We would like him to

refrain from overseas travel because his line of

work, his profession takes him out of the country a

lot. We hadn't even said he was going.

They called and said, we'd like him to

refrain from out of the country. We said okay. We

didn't have any obligation to do that. They

couldn't have kept him in the United States. And

the truth is he could have gone to the airport and

been gone before they even knew it. We said okay.

Then he had some in-U.S. travel plans, and

we notified them of that and got their opinion on

that. There's nothing to show -- other than the

allegations of him deleting something, there's

nothing to show that he wouldn't comply.

I get it. But 3142(j) says, even in a bail

setting, he's presumed innocent. He came here. He

self-surrendered today. The government -- and they

didn't have to do this, and I'm saying a lot of

things about them today. But the government gave

counsel the courtesy and said, listen, he's charged.

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You know, we're not going to go pick him up if you

guys will bring him here.

We called the client. Guess what?

8 o'clock on the dot, he's here. He didn't try to

disappear. He didn't try to get away. He came, by

the way, knowing -- even though we didn't have the

complaint then, you can assume that his counsel,

whatever level of skill we do or don't have, we know

what goes on with a 2252A count. He knew what the

charges were. He knew how serious it is. He knew

one of them has a five-year mandatory minimum. He

knew that they were going to -- we didn't have their

submission by then, through no fault of the

government. He knew what else was going to be in

there because we've had good conversations with the

AUSA. Instead, he shows up at 8 o'clock this

morning.

They have nothing to show that he's going

to be some scofflaw who's going to immediately try

to get around GPS, a third-party custodian who's

here, who fits the bill, house arrest, et cetera, no

Internet service.

Yeah, sure, he's so sophisticated that,

according to the government, he's filming having sex

with minors, leaving it on his phone and then giving

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them the password. Whatever happened, they can't

sit here and say that he's Edward Snowden because if

they're right about that, he's far from a

sophisticated Internet criminal who's going to

figure out a way to get some secret Internet service

that nobody knows about.

Posting of property. Money is money. The

Court has to decide whether that's an amount that

matters. I don't think we have access to much more

than that.

Surrender of passport. I think he brought

it already and may have turned it in, or obviously

we'll do that.

PRETRIAL SERVICES: Yes, you did.

MR. BALDASSARE: He did.

Yeah, so we turned in the passport even

before the Court ordered it because we knew that

whatever happens here today, the passport is coming

in, right. So we brought that. And then whatever

standard conditions there are.

So lastly, I just think that -- and I

appreciate the Court's time. The reason that I have

gone through this is because I'm not going to read

Your Honor what we submitted about MDC. And I'm not

asking you to send him home because MDC is

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disgraceful and disgusting. But what I am saying is

that the government has a pretty big ask. And the

fact of the matter is that for all of the incendiary

allegations that nobody wants to read and that

nobody wants to think actually happens, they have a

high burden before Your Honor sends him there.

By the way, it's not like a 30-day

misdemeanor. We don't know how long he's going to

be there. If the case goes to trial, is he really

going to sit -- does this man really deserve, based

on the record here today that I've been informed of

so far and that I've had an opportunity to meet,

does he really -- should he really be sitting

someplace where there was just a murder, where

they're on 23-hour lockdown until the case either

goes to trial or is otherwise resolved?

And I say under the legal standard, the

answer is no, and that he should be released on

these conditions, all of which we can meet, you

know, within 24 hours, except maybe the posting of

the bond. And I've seen -- and I know the Court is

empowered to release him and give him 24, 48 hours

to meet those conditions. And there's no reason to

think he's going to flee. In fact, he's

incentivized to get them done.

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So that's our request, Judge. I might want

to respond if I hear a whole host of new things from

the government, although I'm not sure how I could

deal with them like this on the fly, given the

importance of your decision.

THE COURT: Thank you.

MR. BALDASSARE: Thank you, Judge.

MR. BERGER: Thank you.

Mr. Baldassare is right that if this were a

run-of-the-mill case, the argument would be very

different. He's absolutely correct. But this isn't

a run-of-the-mill case, and that's for all the

reasons I mentioned earlier.

And I want to respond to a few of defense

counsel's arguments. I'll take them in turn.

So with regard to the question of whether

Smith really refers to the defendant, the answer is

simple. They were on his phone. The FBI seized his

phone from his house, his phone number. His

subscriber records list him as the subscriber. And

these were on his phone. Simple as that.

And with regard to the pop-up notification,

I will proffer the additional piece of evidence.

Let's say -- this is not the actual username. Let's

say the username was John Doe. I will say that the

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FBI sent a message, and a pop-up notification

appeared with new message from John Doe.

And I should add that the complaint has

additional evidence linking the defendant to the

"Anon Anon" account, like travel records and so on.

Briefly, Mr. Baldassare made the point as

to who sent it. I'll point the Court to paragraph

6(d), which indicates that the defendant had sent --

that's the video of the 10-year-old that was sent

from the defendant's account. The defendant, the

"Anon Anon" account, sent a couple dozen of these

videos. That was the first one.

With regard to the "I have a boy 15"

message, there's a lot more there. Now, I'm happy

to proffer some additional evidence again.

THE COURT: Well, let's get to the heart of

it. I think part of the issue is that

Mr. Baldassare was saying, maybe these aren't really

kids. Maybe they're young-looking grown ups.

MR. BERGER: And he might be right. That's

why we used the word "apparent." These are serious

allegations. We don't take them lightly.

THE COURT: But if they are young-looking

grownups, what does that mean for purposes of my

decision today?

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MR. BERGER: The key point is that the

defendant thought they were minors. That's the key

point. That's what makes him a danger. And, in

fact, in a couple of these threads, when he starts

doubting that they're minors, he drops off.

It doesn't really matter whether he was

chatting with someone who was actually 12. It

matters that he thought he was talking to a

12-year-old. That's the key point. That's what

makes him dangerous. And there's plenty of evidence

that he thought that they were minors.

And especially with a 15-year-old, there's

very specific evidence where that person talks

about -- the minor talks about school and school

schedules and recess. And the defendant talks to

others where he mentions that he's having sex with a

15-year-old.

And with regard to that specific thread, "I

have a boy, 15," the thread continues. It's a very

long message thread, but it includes scheduling

discussions, directions. The third person in the

threesome left his watch at the defendant's house,

so they made arrangements to pick it back up. This

is not some abstract thing. This is something that

happened.

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And I'm happy to respond to specific

factual questions that the Court has. But I also

want to note that legally -- and this is cited in

the first Second Circuit case cited in our

submission, the facts that make the defendant

dangerous do not have to be connected to the charged

conduct. So, for example --

THE COURT: No. I'm with you on that one,

actually.

MR. BERGER: Okay. And I want to respond

to the home detention argument.

THE COURT: Yeah. I mean, look -- and

that's really what this comes down to, right?

MR. BERGER: Yeah. Yeah.

THE COURT: Because the question is -- and

I think it's fair to say that the presumption is

rebutted by the ties to community, third-party

custodian. And it comes back to, have you met your

burden of demonstrating by clear and convincing

evidence that there is no set of conditions, no set

that can be imposed, that can reasonably guarantee

the safety of the community, not 100 percent. So

that's really what I need to hear from you about.

MR. BERGER: Yeah. Understood.

And on that, here's the key concern:

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Nothing is stopping him from getting another phone,

starting another anonymous account and doing it all

over again. He doesn't need to have a modem, a

router, anything like that, that can be monitored.

He could get a phone. It doesn't take much

sophistication beyond that.

And specifically I want to respond to the

third-party custodian. And I take no pleasure in

saying this, but the defendant's partner --

actually, in some of these chats, the defendant

actually indicates that he was hiding it from his

partner, that his partner did not know, was not into

this, and that he was hiding it from him. He was

scheduling things around his partner's schedule and

was doing it behind his partner's back. If his

partner worked from home and lived there for ten

years, clearly, it didn't work in terms of

supervision.

THE COURT: Well, it didn't work when he

was hiding it, but now it wouldn't be hidden

anymore. And wouldn't that change things?

MR. BERGER: Somewhat. But a phone is not

a hard thing to hide. And even if it could change

things with regard to having a minor over, fair

enough, it doesn't change things with regard to

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chatting with minors, sharing or viewing child

pornography. If there's a will, there's a way. And

there's clearly a will here, and clearly the means,

and clearly the sophistication to go about this

conduct.

THE COURT: Is there anything further?

MR. BERGER: That's it, Your Honor. Thank

you.

MR. BALDASSARE: Yeah. Judge, very

quickly, I keep hearing nothing is stopping him,

nothing is stopping him.

Judge, they want certainty. You said it

yourself. Certainty either way is not required.

I'm not required to show it's certain that he'll be

compliant, right. They have to show clear and

convincing, not certainty.

But here's what I think, respectfully,

might be stopping him. He has the brief. He didn't

know what MDC was as of yesterday. He does now.

Unless he has an unbelievable inability to read and

comprehend, he knows what he's headed for. And the

Court should assume that he also knows if the Court

lets him out and he screws up, that's where he's

going and we're never coming back and saying, oops.

That, to me, someone with no criminal

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history, who's never been, quote/unquote, on the

inside, I think that's the biggest deterrent. Maybe

being able to eat, shower, not be murdered, have

medication that he has to take and not be in 23

lockdown, I think for someone like my client, that's

a pretty big deterrent. That's number one.

Number two, Your Honor hit on it. I don't

know what these texts say that he's hiding it from

his partner. Haven't seen them. Haven't read them.

The government can go by proffer, but I'll tell you

one thing, if those texts are subject to essentially

a close read, an analysis, a cross-examination as

these other ones, I'd like to see them if the Court

is going to detain my client, our client, at MDC

based on that.

I hear a lot of the use of the word

"might." The conditional tense isn't clear and

convincing evidence. Doesn't have to be "will," but

it can't be he might do something. If that's the

case, the standard means nothing whatsoever.

How or when or what's reality doesn't

matter, I heard -- not in those words -- it's what

was in his head that matters. Sure. First of all,

again, we're saying it's him. That might matter if

we were trying the case, but I don't think it gives

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anything near a reasonable or a high degree of

probability what was in his head.

By the way, one thing that I heard was that

things were found on his phone and that that's in

the complaint. It could be. But what I see in the

complaint is a description of -- it says, "A

subsequent review of Phone-1 revealed that the user

of the Smith Telegram account" -- which, again, it's

so denominated because this soon-to-be defendant

said it was Smith.

"A review of Phone-1 revealed that the

Smith Telegram account knew Target Telegram User's

first name and that it was him," et cetera,

et cetera, et cetera. And as I read it, Phone-1 is

related to the person who they seized beforehand.

Even if there are things on a phone that

have "Anon" or things like that, the fact remains

that there is really very little reason to believe

that Mr. Smith is so dangerous that putting him on

lockdown -- and when we crafted this -- and then

I'll wrap up -- we said to ourselves, how can we put

him in MDC, but not let him live like a filthy

animal? What we came up with is make his apartment

MDC, except let him eat, not be murdered, not have

maggots, shower, not be in lockdown. This is

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essentially MDC.

And by the way, you also know MDC is no

great shakes with being not only safe, in our

submission, from what I gather, MDC is the easiest

place in the world to get drugs. MDC is the easiest

place in the world to get a cell phone. I would bet

that if we took a close look at the cases from this

district, the articles and the statements from BOP

people themselves, there's a case that basically

says if the defendant is going to intimidate

witnesses, he can do it just as easily from MDC as

from home. And, in fact, the case says he did just

that. He was put in MDC to stop him from

intimidating witnesses, and he got a phone and he

did it anyway.

So the fact remains, what we're asking is

to put him in, basically, MDC, except let him live

under humane conditions where he can meet with his

counsel, where he can prepare his defense, where he

can be safe, locked down, not dangerous. That's

wrong, Judge. It is wrong for the government to

presume that he's going to go out and violate this.

Every single thing that you have says otherwise.

I understand Pretrial's recommendation in

this case. As I read Pretrial's recommendation, the

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risk of flight is based simply on the child porn

offenses that are alleged.

THE COURT: Yeah, I'm not -- like I said,

I'm not concerned about the risk of flight.

MR. BALDASSARE: I misspoke. I misspoke.

Their assessment on dangerousness, as I read it.

That's what I meant.

Their assessment on dangerousness is based

on the child porn offenses. But as I read it, it

basically would make a per se ban because all they

say is the nature of the offenses. There's nothing

specific as to our client, like he did it before or

anything like that.

As I read this analysis in particular, that

could apply -- every single defendant would have to

be detained because they don't say anything like,

not a citizen, has $50 million in the bank, has dual

citizenship.

THE COURT: Well, there are resources here

that a lot of other defendants facing similar

charges don't have. And those kind of resources can

get access to things that you wouldn't want somebody

who might be at risk of committing these kinds of

offenses to have.

MR. BALDASSARE: Absolutely, Judge, but --

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and I don't mean to sound flip -- he had those

resources when he wasn't charged. He had those

resources when he knew -- when they had come, 20 of

them -- and I'm not saying they overdid it, but a

lot of them came to his apartment. That's a scary

thing. He stood totally nude in the hallway while

they executed it, and then they leave.

He had those resources. He could have fled

then. He knew in relatively short order what

charges he was facing, without question. So, yes,

he has resources. But what I would say is there are

a lot of other people who don't have resources, but

have other types of resources, such as an

out-of-country citizenship, family, someplace to

hide, live in countries with no extradition

treaties.

THE COURT: But, again, I'm not concerned

about flight. I'm concerned about commission of

this crime. And having financial resources enables

one to be in a better position if you were so

inclined to do this. It's going to be easier to get

a phone than, you know, if you don't have the

resources. It's going to be easier to buy a new

computer. Those are the kinds of things that I'm

concerned about.

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And I'm concerned that I'll hear from the

government that there were purchases of items that

could be used to commit these crimes subsequent to

the confiscation of the original computers.

MR. BALDASSARE: Well, what I would say,

Judge, is, as for resources, respectfully, I don't

think -- and I think the government essentially said

this. I don't think it takes a lot of resources to

get a new smartphone, which is, by the way, where

they found the evidence that they say that -- of the

threesome.

I think getting a phone is -- pretty much

everybody has phones. I don't think getting a new

computer requires resources. And as for computers

that he bought, you know, before, if he has Internet

limitations -- my co-counsel reminds me that's how

he works. And, again, that might be viewed as

cutting both ways, but he didn't go out -- he's not

someone who, say, is a mason, or someone who doesn't

need computers to earn money, although there are

very few people who don't anymore in some form or

fashion.

His job is largely computer based. That's

why those new computers were purchased. And, Judge,

at the time he did it, he wasn't charged. He was

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under suspicion. He had no obligation to not buy

computers. And the truth is, if counsel had ever

thought that we should check with them the way we

did -- once we knew they didn't want him out of the

country -- and I know this is risk of flight, but it

goes directly to them saying he's going to ignore

things.

If we had thought, okay, they don't want

him to earn a living, we would have called them.

And if they said no, that's what would have

happened. And his businesses may have failed

potentially as quickly as they're going to if you

send him to Brooklyn.

So I think that the Court has sufficient

reason to let him be on lockdown at home. We all

understand he gets one chance at this. I don't

think it's too big of an ask, given his history and

given the legal standard.

Thank you.

THE COURT: Thank you.

MR. BERGER: Just one clarification, just

in case I introduced error. I'm not aware of any

computer purchases after the search warrant.

THE COURT: I thought there was a Mini Mac.

Micro Mac.

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MR. BERGER: No. Well, I don't recall

saying that.

In any event, what I'll clarify is this,

like, as to the post-search conduct, here's what we

know. We know the FBI was communicating with the

"Anon Anon" account through Telegram. At some

point, the FBI executed the search and took the

phone, put it in airplane mode.

At some point, when the FBI accessed the

account that the FBI was using, they saw that the

counterparty with whom they have been

communicating -- and instead of saying "Anon Anon,"

now said -- I don't know -- "Deleted User" or

something like that. That's what we were saying.

We were saying that, after the search, the

defendant somehow logged into Telegraph through some

other means and deleted it.

THE COURT: Okay.

MR. BERGER: And we're not saying he got

the device wrongfully or anything like that. It's

just that the deletion is the issue, not with any

device.

MR. BALDASSARE: So, Judge, just in the --

so two things I would say is I still don't hear -- I

hear "somehow." I don't hear anything coming close

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to a real allegation that he somehow did it.

But, in candor, my obligation to be candid

with the Court, we thought it was in there, but he

did get an iPad, a Mini or an iPad or something.

THE COURT: I didn't think I made it up,

but okay.

MR. BALDASSARE: Yeah. I just don't want

to stand here -- the government, to their credit --

but I don't want you to think that didn't happen

because it did, and it was for work.

THE COURT: Okay. I am going to take a

recess.

(A recess was taken.)

THE COURT: Please be seated.

So in this case, I find the presumption has

been rebutted, as I said, but I find that the

government has carried its burden of showing by

clear and convincing evidence there are no

conditions I can impose that can reasonably assure

the safety of the community.

In particular, the nature and the

circumstances of the offense charged are very

troubling, and I think the weight of the evidence is

significant. While there is no criminal history and

there are ties to the community, the behavior that's

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charged and not charged has been going on, it's been

going on under -- without the knowledge of the

person who would be the third-party custodian. And

what's been hidden before could easily continue to

be hidden. Technology is readily available.

Mr. Smith is sophisticated and would understand how

to get technology and how to deploy it.

I certainly appreciate the willingness of

Mr. Smith's partner to support him, including

financially and as a third-party custodian, and I

certainly thank you for coming to court today to be

part of this process. But due to Mr. Smith's own

characteristics, I find that even with that support,

I cannot reasonably assure the safety of the

community.

I expect you might want to take this.

I believe Judge Failla is the Part 1 judge

today. But since it's a felony complaint, would you

like a preliminary hearing on the 14th day?

MR. BALDASSARE: No, Judge. I've consulted

with the government, asked if we can move it out to

30.

THE COURT: 30 days from today. Monday,

July 29th. And I believe that's it.

MR. BALDASSARE: Yes, Judge.

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THE COURT: Is there anything further?

MR. BERGER: One question, Your Honor,

about the written submissions, whether Your Honor

would like for us to file them on the docket or not.

THE COURT: I will say -- well, does

defense counsel have a preference?

MR. BALDASSARE: I'm happy to leave them as

is. I'll take guidance. If the Court wants them

up, we'll put them up, but ...

THE COURT: I will leave them off for now.

I will consult to see whether there is a need for

them to be there; otherwise, I think they can remain

off the docket. And I will follow up with that

tonight.

Okay.

MR. BERGER: Nothing further. Thank you.

THE COURT: And I believe that that's

everything.

MR. BALDASSARE: Thank you, Judge.

0o0

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C E R T I F I C A T E

I, Adrienne M. Mignano, certify that the

foregoing transcript of proceedings in the case of

United States of America v. Justin Heath Smith;

Docket #24MJ2422 was prepared using digital

transcription software and is a true and accurate

record of the proceedings.

Signature ___________________________

ADRIENNE M. MIGNANO, RPR

Date: July 2, 2024

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