LAW

OFFICESOF

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 1 of 89

ARTHUR L. AIDALA•MARIANNE E . BERTUNA•
HON. BARRY KAMINS (RET.)
HON. JOHN M. LEVENTHAL (RET.)
HON . DAVID L . LEWIS (RET. )JOHNS. ESPOSITOMICHAEL T . JACCARINOIMRAN H . ANSARIDIANA FABI SAMSON..
ANDREA M. ARRIGO•MICHAEL F. DIBENEDETTO•
LINO J. DE MASIDAVID M. SCHWARTZ+~ALSO /\OMITTED IN NEW JERSEY..ALSO ADMITTED IN CONNECTICUT+ALSO ADMITTED IN 0.C.

546 FIFTH AVENUENEW YORK, NY 10036
TELEPHONE : (212) 486-0011
FACSIMILE: (917) 261-4832
WWW.Al DA LALA W. COM

December 15, 2023

8118 - 13TH AVENUEBROOKLYN, NEW YORK
11228 TEL: (718) 238-9898
FAX : (718) 921-3292
OF COUNSELJOSEPH A. BARATTAANTOINETTE LANTERIWILLIAM R. SANTOPETER S. THOMASLAWRENCE SPASOJEVICH
SIGURD SORENSONSENIOR COUNSELLOUIS R. AIDALAJOSEPH P . BARATTA

Hon. Jesse Funnan
United States District ComiSouthern District of New York
40 Foley Square
New York, New York 10007
Email: Funnan_NYSDChambers@nysd.uscomis.gov
Re:

United States v. Cohen
Case No.: 1:1 8-CR-602(JHF)

Dear Judge Funnan:
We represent David Schwartz who has been served with an Order to Show Cause, dated
December 12, 2023, in the above-referenced case. Pursuant to Rule 10B of your Honor's
Individual Rules and Practices in Criminal Cases, we hereby seek to file under seal: (1) this letter
motion and (2) Mr. Schwartz's submission (with exhibits) in response to the Order to Show Cause.
As explained in our affinnation, we believe and advised Mr. Schwartz that his answers to
the questions posed by your Honor implicates the confidentiality of the attorney-client privilege.
It is also our opinion that under the unique circumstances present here, as articulated in Mr.
Schwartz's affinnation, the New York Rules of Professional Conduct (RPC) require that hedisclose to the Court the infonnation about his client's conduct (see RPC 1.6 [b] [6]).
RPC 3.3 [b] pennits a lawyer who represents a client before a tribunal and who knows that
person has engaged in fraudulent conduct related to the proceeding to take reasonable remedial
measures, including, if necessary, disclosure to the tribunal. "Fraudulent conduct" has beeninterpreted to mean any conduct that would compromise the integrity of the judicial process.
We respectfully request that your Honor allow this letter motion and Mr.
Schwaiiz's submission to remain under seal until you rule as whether Mr. Schwartz can reveal theinformation stated in his affirmation without violating the attorney-client privilege.
Finally, we are not the attorneys of record in this matter and only represent Mr. Schwartz
for this limited purpose. Please advise if you wish us to file a notice of appearance.

(2
Barry Kamin~/~Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 2 of 89

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK--------------------------------------------------------------------X
UNITED STATES OF AMERICA,
AFFIRMATION-v-

18-CR-602 (JMF)
MICHAEL COHEN,
Defendant.

--------------------------------------------------------------------X
Barry Kamins and John M. Leventhal, being attorneys at law, duly admitted to practice inthe courts of New York, affirms the following allegations to be true under the penalty of perjury:
1.

We represent David Schwartz, a non-party in the above-captioned matter.

2.

On December 12, 2023, Mr. Schwartz was served with an Order to Show Causedirecting him to show cause in writing why he should not be sanctioned pursuant to Rule 11 of theFederal Rules of Civil Procedure. Mr. Schwartz was instructed that any submission he makes shalltake the form of a sworn declaration and shall provide, among other things, a thorough explanationof how the motion filed on behalf of Mr. Cohen came to cite cases that do not exist and what role,
if any, Mr. Cohen played in drafting or reviewing the motion before it was filed.
3.

We have discussed with Mr. Schwartz the background of this motion and thecircumstances under which three Second Circuit Court cases were included in the motion.
4.

We have advised Mr. Schwartz that his answers to the questions posed by the Courtin the Show Cause Order, implicate the attorney-client privilege. We have also advised Mr.
Schwartz that it is our opinion that, notwithstanding the attorney-client privilege, under thecircumstances in this case, the New York Rules of Professional Conduct require that he disclose
to the Court certain information about his client's conduct.

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 3 of 89

5.

Pursuant to Rule 1.6 of the Rules of Professional Conduct, a lawyer shall notknowingly reveal confidential infonnation protected by the attorney-client privilege.
6.

Under Rule 1.6(b), however, there are a number of exceptions to the general rulethat protects confidential information. Pursuant to 1.6(b)(6), a lawyer may reveal confidential
infonnation when pe1mitted or required under the Rules of Professional Conduct. Under Rule3.3(b), a lawyer who represents a client before a tribunal and who knows that person has engaged
in fraudulent conduct related to the proceeding shall take reasonable remedial measures, including,if necessary, disclosure to the tribunal.
7.

"Fraudulent conduct" under the above rule has been interpreted to mean any

conduct that would "compromise the integrity of the judicial process." See Simons, New York
Rules of Professional Conduct Annotated (2020-2021 Edition, p. 1099).
8.

Based on the above, we have advised Mr. Schwartz to obtain a ruling by the Court

whether the conduct of his client must be disclosed. As a result, we have advised Mr. Schwartz tofile a motion to seal his submission, to permit the Court to review his submission under the cloak
of confidentiality until such a time as the Court renders a decision.

Dated: December 15, 2023
New York, New Yorkt3

Bany Kamf::'f~Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 4 of 89

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORKUNITED STATES OF AMERICA,
CaseNo. 1:18-CR-602-(JMF)
V.

MICHAEL COHEN,
Defendant.

DECLARATION OF DAVID M. SCHWARTZ
Pursuant to 28 U.S. Code§ 1746, I hereby declare as follows:
I am an attorney duly admitted to practice law before the Courts of the State of New York,and duly affirm the following under penalties of perjury:
1. I have spent my entire career practicing law as a litigator who has represented clients at
all ends of the spectrum, from large, powerful companies to the least fortunate in our society. I
am a former Assistant District Attorney in Brooklyn and served the People of the State of New
York in the 1990's. I have tried many cases in multiple jurisdictions. I am admitted to all courtsin the State of New York and Washington, D.C. and have appeared pro hac vice in many otherjurisdictions.
2. On November 29 th , 2023, I submitted a pro bona application on behalf of Mr. Michael
Cohen. This was the fourth request I filed for Mr. Cohen for early termination of supervised
release. On July 6, 2022, I first submitted a request, a second request was submitted on
December 8, 2022, and a third on May 31, 2023. (Exhibit A)

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 5 of 89

3. The current submission contained much of the information contained in the submissionof May 31, 2023, but it also included new information: (1) Mr. Cohen's recent testimony inPeople v. Trump, Index No. 452564/2022 (NY, Supreme Court) and (2) the recommendationfor early termination of supervised release of Mr. Cohen's probation officer, Probation Officer
Osman.
4. In preparing the current submission, on November 12, 2023, I sent Mr. Cohen a draft of
my proposed letter to the Court. Notably, my original draft letter did not cite any cases. It wasnever my intention to cite any cases as I felt that the application was strong enough, based on all
the facts and circumstances. The original draft letter sent to Mr. Cohen was dated May 30, 2023
(Exhibit B)
5. It was apparent and clear to me that E. Danya Perry, counsel for Mr. Cohen in priorproceedings 1, reviewed my original draft letter, dated May 30, 2023. Ms. Perry, a renowned andskilled trial lawyer, is the Founding Partner at Perry Law. She is a recognized white collar
criminal defense attorney and commercial litigator who has represented various corporations andindividuals in high-profile matters. Notably, she is a former Assistant United States Attorney in
the Southern District and served as Deputy Chief of the Criminal Division.
6. On November 12, 2023, Michael Cohen sent me a redlined draft of the letter, ostensibly
prepared by Ms. Perry. It contained comments and, specifically, a suggestion that "you shouldhave a few in-district court cases where judge granted early termination." The comments werelabeled "DP", which I believed were attributed to Danya Perry. (Exhibit C)
7. Along with the redline draft from Ms. Perry, I received a text from Mr. Cohen, with thenotation, "sent to me from Danya". (Exhibit D)

1

Ms. Perry has represented Mr. Cohen in the following cases: Cohen v. United States of America et al (1:21-cv10774-LJL), Cohen v. Barr et al (l:20-cv-05614-AKH) and Michael Cohen (I: 18-cr-00602-JMF-l)Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 6 of 89

8. I adopted Ms. Perry's redlines shortly thereafter, and changes to the draft were sent backand forth between my office and Mr. Cohen. It was my belief that Ms. Perry was reviewing thesedrafts as well.
9. On November 25, 2023, my office received three emails from Mr. Cohen with the threecases in question plus summaries of the cases. (Exhibit E) As Mr. Cohen had previously
forwarded Ms. Perry's edits of the draft letter, and as Ms. Peny had suggested that case law be
added to the letter, I believed that Mr. Cohen was now sending me cases that had been found by
Ms. Perry. Prior to receiving these emails, Mr. Cohen communicated to me that cases would be
provided by Ms. Perry.
10. Admittedly, because of Ms. Perry's reputation, I relied on her skills as an attorney and as
someone who had been working with me in preparing this submission; as a result, I did not
independently review the cases.
12. I failed to review what I thought was the research of another attorney.
13. I never contemplated that the cases cited were "non-existent."
14. On December 6, 2023, Ms. Perry filed a Notice of Appearance on behalf of Michael
Cohen (Doc.# 91).
15. On December 8, 2023, Ms. Peny filed a Letter Motion addressed to Judge Jesse M.
Furman requesting leave to reply to Government's Letter in Opposition to Defendant's Letter
Motion for Termination of Supervised Release (Doc. # 92).
16. On December 8, 2023, Ms. Perry filed a Letter Reply to Response to Motion by Michael
Cohen addressed to Judge Jesse M. Furman (Doc# 94).
17. On December 8, 2023, Ms. Perry filed a Letter Reply to Response to Motion by Michael
Cohen addressed to Judge Jesse M. Furman (Doc# 95).

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 7 of 89

18. As of December 12, I had not yet read the two December 8 replies filed by Ms. Perry.
19. After I was served with the Show Cause Order on December 12, 2023, I spoke with
Lilian M. Timmerman, a Partner at Perry Law. After I explained to her that I believed that her
office had "found" the cases in question, she told me that Mr. Cohen had admitted to them that
he had found the cases on Google.
20. If I had believed that Mr. Cohen had found these cases, I would have researched them.

It was my belief, however, that Mr. Cohen had sent me cases found by Ms. Perry.
21. I am fully aware that I bear the responsibility for any submission on my letterhead andthe inaccuracies contained in this filing are completely unacceptable.
22. I sincerely apologize to the court for not checking these cases personally before
submitting them to the court.
23. I declare under penalty of perjury, that the foregoing is true and correct.

Executed on this 15th day of December 2023.

David M. Schwartz

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 8 of 89

EXHIBIT A

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 9 of 89

GERSTMAN ScHWARTZ LLI'ATTORNEY S

AT

LAW

July 6, 2022
VlA CM/ECF & EMAJ L
Honorable Jc:sse M. Furma11
United States District Judge
Southern District of New York500 Pearl Street
New York, New York 10007

Re:

United States v. Michael Cohen, I 8-Cr-602 and I 8-Cr-850

Dear Judge Furman:
Please be advised that the Law Offices of Gerstrnan Schwartz LLP represents Mr. Michael
Cohen, for purposes of seeking your Honor's intervention in requesting that you discharge Mr.
Cohen from Supervised Release.
Under 18 U.S.C. § 3583(e)(2), the court may, after considering the applicable factors in 18
U.S.C. § 3553(a), "modify, reduce, or enlarge the conditions of supervised release, at any timeprior Lo the expiration or termination of the term of supervised release, pursuant to the provisionsof the Federal Rules of Criminal Procedure relating to modification of probation and the provisions
appli cable lo the initial setting of the terms and conditions of post-release supervision[.]"Obviously, given the profile of Mr. Cohen's prosecution, it is widely understood that Mr.
Cohen endeavored to provide meaningful assistance lo the government, al least as far as this term
is co lloquially understood. 1 There is no question that Mr. Cohen and hi s family have paid the price
1 Mr. Cohen proved to be an invaluable governmental asset by assisting m1thorities i11 various investigations. Someof his notable contributions inc lude:
I. Manhallan District Attorney's Office: Three meetings wh ile in prison and 12 in total. Mr. Cohe11 had no
obligation to mee t with the Manhattan District Attorney's Orfice, and he received 110 benefit from do ing so.
2. Nt::w Yor-k Attorney General' s Oflice: Three meetings with Attorney Genernl Letitia James both be fore andafter Mr. Cohen's sentence. He volu ntarily provided the NYAG with several important docum ents.
3. South ern District of New York: Mr. Cohen met with the SONY nnd Specia l Counsel's Oftice (SCO) of the
Department of Justice before th e entry or his pica in August 20 18. Mr. Cohen participated in 7 voluntaryinterviews with both onices.
4. Special Counsel's Onice: Mr. Cohen met wi th the SCO roughly 10 times regarding the Mueller probe -albeit the inquiries frilling outside convcntion;il fram ework in which courts routinely engage in.
IJnitcd Stales Congress: Specirically, Mr. Cohen met with the House Oversight Committee on three occasions, theI lo11sc Intelligence Commillee 0 11 three occasions, the Senate Intelligence Committee on three occas ions, andindividual Members of Congress for cou11tless hours preparing them fo r h1.: ari11gs.

GERSTMANSCHWARTZ .COM
I.199 Frank lin Avenue. Suite 200, Garden Cit y. N.Y. I I'.DO

O FFICE: 5 I6.880 .8 170

FAX.'i 16.880.8 171

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 10 of 89

G ERst M AN ScHWARTz·LLPA "llOl-lNEYS

A T

I

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for his transgressions. No doubt, it will also not be lost on this court that he has taken full
responsibility for his actions.
We would respectfully venture further, that Mr. Cohc11 presents no risk of recidivism andis a model candidate for a cessation of Supervisory Release. Indeed "[i]n the federal courts,
supervision is ... a way to monitor the activities and behavior of people released to the community
by the federal courts or paro ling authorities .... [and] .. . an opportunity to help offenders reintegrate
into the community foll owing a period of incarceration ... The desired outcomes of supervision are
the execution of the sentence and the protection of the community by reducing the risk andrecurrence of crime and maximizing defendant success during the period of supervision andbeyond. The goal in al l cases is the successful completion of the term of supervision, during which
the defend ant commits no new crimes; is held accountable for victim, fami ly, community, andother court-imposed responsibilities; and prepares for continued success (i.e., refraining fromfurther crime) through improvements in his or her conduct and conclition."2

It is clear that the goals of supervision have been ful filled. Mr. Cohen has exceeded all of
his court-imposed responsibilities, is a loving husband and father, presents no risk of recurrence,and generally does not require the social services support to appropriately reintegrate into society.
In fac~, continuing supervision is his only 1:emaining hincterance in terms of being able toreassimilate into the community.
Mr. Cohen began serving his sentence of 36 months imprisonment and 3 years ofSupervised Release on or about May 6, 20 19. Mr. Cohen's petition fo r a Writ of Habeas Corpus,
pursuant to 28 U.S.C. § 2241, was dismissed on April 20, 2 02 1 for procedural reasons.
Specifically, the court articulated that his petition was denied because it was premature and notripe for review considering the First Step Act was not -ful ly implemented. Although the petition,vas rejected for the noted reasons, we ask this court to reconsider it as a factor in Mr. Cohen'scurrent application for a discharge from Supervised Release. The instrumental arguments made infavor then should otherwise obtain now.3
While Mr. Cohen was imprisoned at Otisville, he earned numerous cer-Lificates uponcompletion or many programs that ,vould have otherwise counted towards First Step Act points.4
Because of the timing, Mr. Co hen was never credited with those points. These programs are justone barometer indicative o f' hi s rehabilitation which favor his discharge from Supervised Release.
Furthermore, Mr. Cohen reached out to Darrin Howard, Regional Counsel of the Northeast Region2_
hLtps ://www.l , ~"0 11rts.go v/services- forms/probati011 -,1 11 cl-pretria 1-scrvices/pro batin !' -,1ncl-prelria 1-serv ices-

fil!perv ision
J Mr. Cohen's I labeas Corpus Pelition en unciated thal he had a right 10 time credils unclt?r Lhc First Step Progrnm
nnd if nol grnnted, he would spend more time in confinement limn required under the law. This nrgumcnl was
premised as a denial of Mr. Cohen's runclm nen tal due process rights. Sec Ex. i\ auachecl.
4
See fa. B atlachecl.

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 11 of 89

GERSl'MAN SCHWARTZ
A ·1 I

O

R N

F Y S

A T

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LLP

A W

of the federal Bureau of Pri sons, more than 30 times regarding hi s first Step /\cl points wi thout
receiving any co rrespondence.
Of cou.-se, as a matter or lctw, Judge John Kodtl's determinatio11 thal Mr. Cohen's
previous appl icntion for a Writ of 1-Jabeas Corpus was premature was spot on. However, over a
year has passed since, and with this in mind, we respectfully request that th is court abridge Mr.
Cohen's term of Supervised Release that started on November 22, 2021.
We are nsking that you consider the tota lity of the circumstances surrounding theremainder of Mr. Cohen's term of Supervised Release. Once again, it bears repealing that Mr.
Cohen has fully acknowledged his crimes, and his participation with the government o ffi ces, as
articulated in Footnote 1, has provided substantial and meaningful assistance in otherprosecutions and investigations. Given the volume and quality of evidence that Mr. Cohen has
provided to authorities, at great personal expense, we believe that an early release would
encourage simi larly situated figures to take an active role in cooperating in high profile
investigations that are rife with consequence.
It warrants noting that, Mr. Cohen paid his [RS tax dcliciency prior to his sentencing andall fines and penalties have been paid. He had an additional 12 meetings with the Manhattan
District Attorney's office and has committed no offenses wh ile he was incarcerated or while hehas been on home continemenl. We also ask that you consider the extensive cooperation Mr.
Cohen has given to prosecutors from various agencies as well ns other governmental authorities
which he has never received any credit for. Justice would be served in our humble assessment if
you ractor all the coopcrntion into this decision on our application for termination of Supervised
Release.
further, in sum and substance, Mr. Cohen has substanti vely complied with the spirit oflhc
First Step Act. He successlt.tlly completed evidence-based recidivism reduction programming andwas determined lo be al a low risk for recicli vating; thus, he is the definition or an Eligible Prisoner.
To this encl , it warrants noting that he received numerous Certificates al r CI Otisville including
Do ing Time with The Right tvlind, Freedom from Drugs Program, Victim Impact Orientat ion
Workshop, and the Intervention 2 Program.
Michael Cohen has clearly demonstrated that he has been rehabilitated, and given the f'act
that he has committed no further offenses; has been a model inmate in pri son, home confinement
and supervised release; has substantially cooperated with all government authorities; substanti ally
complied with the First Step Act program (receiving no credit on technical grounds) we
respccll'ully urge that Michael Cohen is the perfect candidate lo be discharged from Supe rvised
Release which vvo ulcl communicate to the wider community that justice is tempered by mercy andis proportionall y administe red.

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 12 of 89

GERSTMANSCHWARTZ
A

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I.AW

We appreciate Your Honor's consideration.
Respeclfuily submilled,~~ cc:All counsel of record ( via ECr)David M Schwartz, Esq.
Attorney for Michael CohenCase 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 13 of 89

EXFIIBIT' A

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 14 of 89

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK

- - " - - - - - - - - - - - - - - - - - - - - •• - - - - - - -x:
MICHAEL D. COHEN,

No.

Petitioner,v.
UNITED STATES OF AMERICA, and
MICHAEL CARVAJAL, DIRECTOR
OF THE FEDERAL BUREAU OF
PRISONS
Respondents.

- - - - - - - - - - - - - - - - - - - - - - - - - - • - - - . -x:
PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C, § 2241
PERSONAL INFORMATION
1.

Petitioner, Michael D. Cohen, is a New York resident that is, at the time of thisfiling, currently on compassionate release from FCI Otisville Satellite camp due to the COVID-19
pandemic.
2.

The Respondents in this matter are the United States Government and Michael

Carvajal, the Director of the Federal Bureau of Prisons.
3.

No petition for a writ of habeas corpus has previously been filed in any court toreview Petitioner's case.

DECISION OR ACTION BEING CHALLENGED
4.

Petitioner brings this instant Petition and challenges how his sentence is being

carried out, calculated, or credited by prison or parole authorities (for example, revocation or
calculation of good time credits).

1

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 15 of 89

5.

Petitioner is challenging the judgment of conviction entered by the Honorable

William H. Pauley, III. of the United States District Court for the Southern District ofNew York
(Foley Square).
6.

Petitioner's underlying criminal matter is docketed at l:18-cr-00602-WHP-1 andthe date of the judgment of conviction is.August 21, 2018.
7.

Petitioner pied guilty to nine separate counts: (i) five counts of tax evasion, in

violation of26 U.S.C. § 7201; (ii) one count of making a false statement to a financial
institution, in violation of 18 U.S.C. § I 014; (iii) two counts ofmaldng unlawful campaign
contributions, in violation of 52 U.S.C. § 30109(d)(l)(A); and (iv) one count of making a false
statement to the Congress, in violation of 18 U.S.C. § 100l(a)(2).
8.

Petitioner pied guilty to the first eight counts on August 21, 2018, pursuant to aplea agreement.
9.

Petitioner pied guilty to the ninth count on November 29, 2018, pursuant to a plea

agreement with the Special Counsel's Office. The cases were consolidated for sentencing,
10.

The Court imposed a sentence of 36 months' imprisonment on the charges in the

SDNYcase.
11.

The Court also imposed a concurrent sentence of two months' imprisonment on

the charge in the Special Counsel's Office case.
12.

Enacted on December 21, 2018, the First Step Act (hereioafter "FSA" or "TheAct") was the result of a bipartisan legislative effort to moderately overhaul the crio1inal justicesystem.
13.

Congress aimed to enhance public safety by improving the effectiveness andefficiency of the federal prison system with offender risk and needs assessment, individual risk2Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 16 of 89

reduction incentives and rewards, and risk and recidivism reduction. HR Rep. No, 115-699 at 22(2018). See United States v. Simmons, 375 F, Supp. 3d 379 (2"d Cir. 2019).
14.

The Act states as follows:

Not later than 2 IO days after the date of enactment of this sub chapter, the Attorney
General, in consultation with the Independent Review Committee authorized by the First
Step Act of 2018, shall develop and release publicly on the Department of Justice website
a risk and needs assessment system (referred to in this subchapter as the "System"),which shall be used to-( I) determine the recidivism risk of each prisoner as part of the intake process, andclassify each prisoner as having minimum, low, medium, or high risk for recidivism;(2) assess and determine, to the extent practicable, the risk of violent or serious
misconduct of each prisoner;(3) determine the type and amount of evidence-based recidivism reduction programmingthat is appropriate for each prisoner and assign each prisoner to such programming
accordingly, and based on the prisoner's specific crlminogenic needs, and in accordancewith subsection (b);(4) reassess the recidivism risk of each prisoner periodically, based on factors including
indicators of progress, and of regression, that are dynamic and that can reasonably be
expected to change while in prison;(5) reassign the prisoner to appropriate evidence-based recidivism reduction programs or
productive activities based on the revised determination to ensure that-(A) all pdsoners at each risk level have a meaningful opportunity to reduce theirclassification during the period of incarceration;(B) to address the specific criminogenic needs of the prisoner; and(C) all prisoners are able to successfully participate in such programs;(6) determine when to provide incentives and rewards for successful participation inevidence-based recidivism reduction programs or productive activities in accordance withsubsection (e);(7) determine when a prisoner is ready to transfer into prerelease custody or supervised
release in accordance with section 3624; and3

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 17 of 89(8) determine the appropl"iate use of audio technology for program course materials withan understanding of dyslexia,
In carrying out this subsection, the Attorney General may use existing risk and needs
assessment tools, as appropriate.
See 18 U.S.C. 3632(a)(l)-(8).
15.

Upon entry, Federal Bureau of Prisons ("BOP") conducted the initial Risk andNeeds Assessment via the Prisoner Assessment Tool Targeting Estimated Risk and Need("PATTERN") tool.
16.

Petitioner was determined to have a minimum risk of recidivism,

17.

Petitioner has been successfully participating in the Act's authorized Evidence-

Based Recidivism Reduction Programming and Productive Activities since his entrance into FCIOtisville Satellite Camp.
18,

Petitioner, on November 27, 2019, had his second consecutive assessmentclassifying him, again, as minimum risk recidivism level.
19.

The Act states:(A) In general.--A prisoner, except for an ineligible prisoner under subparagraph (D),
who successfully completes evidence-based recidivism reduction programming or
productive activities, shall earn time credits as follows:(i) A prisoner shall earn 10 days oftime credits for every 30 days of successful
participation in evidence-based recidivism reduction programming or productive
activities.
(ii) A prisoner determined by the Bureau of Prisons to be at a minimum or low risk forrecidivating, who, over 2 consecutive assessments, has not increased their risk ofrecidivism, shall earn an additional 5 days of time credits for every 30 days of successful
patticipation in evidence-based recidivism reduction programming or productive
activities.

18 U.S.C.A. § 3632(d)(4)(A).
20.

As a result of Petitioner's risk assessment, he should receive 15 days of time

credit for each 30 days in the activities.

4

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 18 of 89

21.

The Act states further that "[t]ime credits earned under this paragraph byprisoners who successfully participate in recidivism reduction programs or productive activities

shall be applied toward time in prerelease custody or supervise/[ release. The Director of the
Bureau of. Prisons shall transfer eligible prisoners, as determined under section 3624(g), into.

prerelease custody or supervised release." Id. (Emphasis added),
22.

Furthermore, under the federal sentencing statutes: "[i]fthe Sentencing Court

included as part of the prisoner's sentence a requirement that the prisoner be placed on a term ofSupervised Release after imprisonment ... the Director of the Bureau of Prisons may transfer theprisoner to begin any such term of Supervised Release at an earlier date •.. based on theapplication ohime credits under Section 3632," 18 U.S,C. § 352l(g)(3),23,

Petitioner's sentence included three (3) years of Supervised Release and underapplication of the Act, makes transfer to Supervised Release the highest application of earned
time credits.

24.

Additionally,§ 3632(d)(6) of the FSA provides: "In addition, the incentives

described in this Subsection shall be in addition to any other rewards or incentives for which a
prisoner may be eligible."25.

Petitioner, as stated, received a three (3) year sentence ofincarceration, in total,on all counts.

26.

Pursuant to The Act, Petitioner is entitled to fifty-four (54) days per sentenced year

as good time credit; this means that Petitioner is entitled to one hundred and sixty-two (162) days
credit for good time.

5

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 19 of 89

27,

Petitioner spent the following days incarcerated, all of which-he would be entitledto credit for under the act, May 6, 2019 until May 21, 2020, then again from July 9, 2020 until July24, 2020, fora total of three hundl'ed and ninety-five (395) days.
28.

Petitioner is entitled to the full fifteen (15) day credit under the act, for a total of

one hundred and ninety-seven (I 97) days.
29.

The total credit Petitionel' is entitled to, when factoring in both his good time andhis First Step credits, is three hundred and fifty-nine (359) days,
30.

Petitioner's release date, pursuant to these credits, is May 29, 2021.

31.

Petitioner has also accumulated more than seven hundred (700) hours of "timecredits" as outlined and defined in§ 3632 (d)(4)(C) of the F'SA.
32.

Petitioner has completed the following classes while incarcerated, with the hours

completed noted in parentheses behind each stated class: DTRM (24), Drug Education: Freedom
from Dmgs (15), Interventions 2 (60), Health/Fitness (3), Victim hnpact (26), Threshold Program(72), P.MA. (24) and Bttsiness Start-Up (16).
33,

Furthermore, Petitioner worked at Water Treatment and the Pipe Shop H.V A.C.

for a total of five hundred (500) hours.
34.

The applicable statutes provide no guidance as to how these hours ·are to be

calculated towards credit towards Petitioner's sentence.
35,

At the present time, despite Petitioner perfonning the above actions and taking

advantage of the time credits available under the Act, the Bureau of Prisons is not calculating thetime credits owed to Petitioner or informing Petitioner of where he stands.

6Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 20 of 89

36.

The Bureau of Prisons has failed, despite repeated and numerous requests by

Petitioner, through the appropriate and proper channels, to provide Petitioner with any calculationof time credits.
37.

As a t"esult, Petitioner is unable to appropriately challenge the determination of the

Bureau of Prisons, as they refuse to make any determination.
38.

This matter must be resolved in the near future because if the Bureau continues tofail in its duties, the Petitione1' is likely to be incarcerated for longer than is propel" under the
statutes.
EARLIER CHALLENGES OF THE DECISION OR ACTION

39.

Petitioner has filed an administrntive grievance about this matter and the

Respondents have continued to fail to make the required calculations.
40.

The issue is not that Petitioner disputes the Bureau of Prison's calculations of his

First Step time credits, the issue is that no agency or represeutatlve will provide him with a1ty

calculatio1t whatsoever regardi1tg his time credits.
41.

Petitioner has submitted numerous requests to every arm of the Govermnent he can,including the Deprutment of Justice and Bureau of Prisons, in an effo1t to have them simply makesome - or any - calculation of his credits.
42.

The Government, initially, steadfastly refused to even reply to Petitioner.

43.

Petitioner has submitted a BP-9 and other administrative forms, as well as emailed

officials and representatives of the Government, in an effort to have the Government provide himwith the official calculation of his time credits.

7

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 21 of 89

44,

Petitioner was either ignored, told that "someone" (with no identity of who"someone" is) will look at it or tl1at the calculations should have been done already and theGovernment is not sure why it has yet to be completed.
45.

The failure to make the needed calculations was made worse by the fact that

Petitioner provided the Bureau of Prisons the calculations and time credits as laid out above, thus,
performing nearly all of the work for the Bureau of Prisons,46.

After all of the above, a representative from the Bureau of Prisons told Petitioner

that he would receive his calculation by December 14, 2020,
47.

December 14th came and went, and no calculation was provided.

48,

On December 15, 2020 Petitioner received a letter from the Bureau of Prisons with

their "calculations".
49.

The decision of the Bureau of Prisons on Petitioner's calculation was that there isno calculation - it stated that Petitioner was not entitled to any credits for his work performed at
FCI Otisville~ addressing the issue of his five hundred (500) credit hours• but did not provide
any calculation for his FSA time, pursuant to the act.
50,

This "calculation" is nothing more than another delay tactic, as it goes against theplain language of the statute, as Petitioner is absolutely entitled to credit under the act, at the ve1y
least, fifteen (15) days a month,
51.

Petitioner is at a loss as to why the Bureau of Prisons would provide him acalculation, late, that would purposefully focus on a narrow issue raised in Petitioners letter, rather
than the most pressing issue - Petitioner's fifteen (15) day a month credit calculation,
52,

This stonewall tactic by the Government has functionally deprived Petitioner of any

meaningful administrative process in this matter.

8

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 22 of 89

53.

The administrative process is to be used to challenge the decision of theGovernment, i.e. once the Government asserts Petitioner's time credits and ultimate adjusted
release date, the administrative process would be used to challenge those determined time credits
or release date.
54.

Petitioner is unable to make any meaningful use of the administrative process as

the Govemment refuses to make any initial determination.

55.

Depending on the Bureau of Prisons' calculations, Petitioner could be eligible forrelease in a matter of weeks or months, making the harm suffered by Petitioner - incarceration
past his release date - near immeasurable and potentially immediate.
56.

Furlhermore, the Government has offered no guidance whatsoever regarding the

calculation of Petitioner's time credits, as detailed above, making it possible that he has alreadyserved well past his release date, causing Petitioner further - and irumediate - harm.
57.

The Government's above stated failure has effectively and completely locked

Petitioner out of the administrative process, as Petitioner has no decision to appeal.
58.

Any attempt by Petitio11e1· to engage the Government in an effort to have themcalculate his First Step credits will be useless, as it will yield the same result as described above.
59.

Respondents have denied Petitioner's appeals and have taken no meaningful action.

60.

Petitioner cannot receive meaningful relief at the moment as the Respondents havefailed to calculate his credits al all.
MOTION UNDER 28 U.S.C. §2255

61.

Petitioner has challenged the validity of his sentence as imposed by p1·eviously

filing a Motion under 28 U.S.C. §2255.

9Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 23 of 89

62,

The Court denied the Petitioner's motion, but he did not raise the issues hereinbecause they were not relevant to a motion under section 2255,
63.

This case does not concem immigration proceedings.

64,

As such, Petitioner is not seeking relief by filing appeals with the Board of

Immigration Appeals.
GROUNDS FOR RELIEF
65,

As shown above, the Petitioner has a right to time credits due to him under the First

Step Program,66.

If relief is not granted, Petitioner will likely spend. more time in confinement than

he is required to under the law.
67.

Such a result would be a fimdamental denial of due process and a violation of

Petitioner's rights
68.

Due process requires application of afforded statutory rights granted by Congressand stands for the principle that "[m]inhnum due process rights attach to statutory rights." Pia v,
Ashcroft, 353 F,3d 228, 239 (3rd Cir, 2003) (alteration in original) (quoting Marincas v. Lewis,
92 F.3d 195,203 (3rd Cir.1996)).
69,

A plaintiff must prove that he possessed a protected liberty (or property) interestand he was deprived of that interest without process to which he was constitutionally entitled. See
Bd. Of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972),
70.

Here, Petitioner can show that he will potentially be wrongfully deprived of his

liberty without relief.

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 24 of 89

REQUEST FOR RELIEF
WHEREFORE, Petitioner prays that this Court grant the fo llowing relief:(I) Issue an Order requiring the Bureau of Prisons to calculate and apply the proper credits
owed to Petitioner under the statutes listed above;(2) Award Petitioner reasonable costs and attorneys' fees; and(3) Grant any other and further relief that this Court may deem fit and proper.
DATED: December 21, 2020
Respectfully submitted,

Isl Michael D. Cohen.MICHAEL D. COHEN
1399 Franklin Avenue Ste 200
Garden City, NY 11 530(646) 853-0114

mdcohe11212@gmail.com

11

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 25 of 89

EXHIBIT.B

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 26 of 89
Case 1:20-cv-10833-JGK Document 9..:5 Filed 03/15/21 Page 1. of 4Federal Bureau of Prisons
FCI Otisville
Certificate of Completion)

MICHAEL COHEN
86067-054.,;z

In recognition of his participation in the INTERVENTION 2 Program
here at FCI Otisville, he is presented with this ce1tificate of completion.
This ce1tificate is hereby issued this 20 th d~y ofFebrnary, 2020}

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at theFederal Co1Tectio11al Facili!J' Otisville, ill Otisville, Ne1v York.
on this 27'1' day ofNovember, 2019~;;,. '-:."3i,'

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Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 28 of 89·,,,.

Case 1:20-cv-10833-JGK Document 9-5 Filed 03/15/21 Page 3 of 4

Certificate of Completion
OF
Doing Time With The Right Mind.)

Colten, Micltael
86067-054
In recognition of his participation in the DTRM Program -EFFECTIVE ALTERNATIVES Program here at FCI
Otisville Camp, he is presented with this Certificate of Completion.
This certificate is hereby issued this 3rd day of September, 2019_1

C~p Counselor)

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 29 of 89
Case 1;20-cv-10833-JGK Document 9-5 Filed 03/15/21 Page 4 of 4Federal Bureau of Prisons
FCI Otisville
Certificate of Completion:,

MICHAEL COHEN

86067-054
In recognition of his participation in the Drug Education - Freedom From Drugs
Program here at F CI Otisville, he is presented with this certificate of completion of the program.
This certificate is hereby issued this 13 th day of August, 2019)rJ,__j_Q,lrv1 l,evv;-;v; .

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E. M. Dariotis, M.Ed., Drug Treatment Specialist

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 30 of 89

EXHIBIT C

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 31 of 89

GERsrMA&Sc1-1wA11rz1.u•-

ATTORNEYS

AT

LAW

December 7, 2022

VIA CM/ECF & EMAIL
Honorable Jesse M. Furman
United States Districl Judge
Southern District of New York500 Pearl Street
New York, New York 10007
Re:

The Government shall file a response to this motion no later thanDecember 16, 2022. No reply will be permitted absent prior leave ofCourt. The Clerk of Court is directed to docket this endorsed document inboth of the below-caption
ses. SO·RED.

December 8, 2022

United States v. Michael Cohen, I 8-Cr-602 and l 8-Cr-850

Dear Judge Furman:
Please be advised that the L11w Offices ofGerstman Schwartz LLP represents Mr. Michael
Cohen, /or purposes of seeking your Honor's intervention in requesting that you discharge Mr.
Cohen from Supervised Release. On July 6, 2022, we made the same application to your honor inwhich you denied our application on July 15,2022, without prejudice as premature. We arc now
respectfully bringing the same application in which Mr. Cohen's term of supervised releasecommenced on November 22, 2022 and he has served over one year of his release,
Under l 8 U.S.C. § 3583(e)(2), the courl may, after considering the applicable factors in 18
U.S.C. § 3553(a), "modify, reduce, or enlarge the conditions of supervised release, at any timeprior to the expiration or termination of the term of supervised release, pursuant lo lhe provisionsof the Federal Rules of Criminal Procedure relating to modification of probation and the provisions
applicable to the initial setting of the terms and conditions of post-release supervision[.]"Obviously, given the profile of Mr. Cohen's prosecution, il is widely understood that Mr.
Cohen endeavored to provide meaningful assistance to the government, at least as far as this term
is colloquially understood. 1 There is no question that Mr. Cohen and his family have paid the price
1

Mr, Cohen proved t-o be an invaluable governmental nssel by assisting authorities In various investigalions. Someol'his notable contributions include:
I. Manhatlan District Allorney's Office: Three meetings while in prison and 12 in tolal. Mr. Cohen had no
obligation to meel with the Manhattan District Attorney's Office, and he received no benefit from doing so.
2- New York Attorney General's Oftice: Three meetings with Attorney General Letitia James both before andafter Mr. Cohen's senlcncc. He voluntarily provided the NYAG with several important documents.
3. Southern District of New York: Mr. Cohe11 met with the SDNY and Special Counsel's Office (SCO) or the
Department ol'JusJiee before lhe entry of his plea in August 2018. Mr. Cohen participated in 7 voluntaryinterviews with both of/ices.
4. Special Counsel's Office: Mr. Cohen met with the SCO roughly IO limes regarding the Mueller probe albeit lhe inquiries foiling outside conventional framework in which courts routinely engngc in.

GERSTMANSCHWARTZ.COM
I 3'J9 l'ranklin Aven11c. Sui le 200, Garden Cily. NY 11530

DH 1<:,•

5 J 6_880.8 I70

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Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 32 of 89

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one barometer indicative of his rehabilitation which favor his discharge from Supervised Release.
Furthermore, Mr. Cohen reached out to Darrin Howard, Regional Counsel of the Northeast Regionof the Federal Bureau of Prisons, more than 30 times regarding his First Step Act points without
receiving any correspondence.
Of course, as a matler or law, Judge John Koeltl's determination that Mr. Cohen's
previous application for a Writ oCI-labeas Corpus was premature was spot on. However, over a
year has passed since, and with this in mind, we respectfully request that this court abridge Mr.
Cohen's term of Supervised Release thut started on November 22, 2021.
We are asking that you consider the totality of the circumstances surrounding theremainder of Mr. Cohen's term of Supervised Release. Once again, it bears repeating that Mr.
Cohen has fully acknowledged his crimes, and his participation with the government offices, as
articulated in Footnote I, has provided substantial and meaningful assistance in otherprosecutions and investigations. Given the volume and quality of evidence that Mr. Cohen has
provided lo authorities, at great personal expense, we believe that an early release would
encourage similarly situated figures to take an active role in cooperating in high profile
investigations that are rife with consequence.

It warrants noting that, Mr. Cohen paid his IRS tax deficiency prior to his sentencing andall fines and penalties have been paid. He had an additional 12 meetings with the Manhattan
District Attorney's office and has committed no offenses while he was incarcerated or while hehas been on home confinement. We also ask that you consider the extensive cooperation Mr.
Cohen has given to prosecutors from various agencies as well as other governmental authorities
which he has never received any credit for. Justice would be served in our humble assessment if
you factor all the cooperation into this decision on our application for termination of Supervised
Release.
Further, in sum and substance, Mr. Cohen has substantively complied with the spirit of theFirst Step Act. He successfully completed evidence-based recidivism reduction programming andwas determined to be at a low risk for recidivating; thus, he is the definition ofan Eligible Prisoner.
To this end, it warrants noting that he received numerous Certificates al FCI Otisville including
Doing Time with The Right Mind, Freedom from Drugs Program, Vic!im Impact Orientation
Workshop, and the Intervention 2 Program.
Michael Cohen has clearly demonstrated that he has been rehabilitated, and given the factthat he has committed no further offenses; has been a model inmate in prison, home confinement
and supervised release; bas substantially cooperated with all government authorities; substantiallycomplied with the First Step Act program (receiving no credit on technical grounds) we
respectfully urge that Michael Cohen is the perfect cm1didatc to be discharged from SupervisedCase 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 33 of 89

GERSTMAN.SCI-IWARTZLLPATTORNFYS

AT

f.t\W

Release which would communicate to the wider community that justice is tempered by mercy andis proportionally aclministerecl.

We appreciate Your l lonor's consideration.
Respectfully submitted,~ _ . d~ ...
David M Schwartz, Esq.
Attorney for Michael Cohencc:

All counsel of record (via ECF)

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 34 of 89

EXI-IIBIT A

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 35 of 89

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x:
MICHAEL D. COHEN,

Petitioner,

No.

v.
UNITED STATES OF AMERICA, and
MICHAEL CARVAJAL, DIRECTOR
OFTHEFEDERALBUREAUOFPRISONS
Respondents.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x:
PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241
PERSONAL INFORMATIONI.

Petitioner, Michael D. Cohen, is a New York resident that is, at the time of thisfiling, currently on compassionate release from FCI Otisville Satellite camp due to the COVID-19
pandemic.
2.

The Respondents in this matter are the United States Government and Michael

Carvajal, the Director of the Federal Bureau of Prisons.
3.

No petition for a writ of habeas corpus has previously been filed in any court toreview Petitioner's case.
DECISION OR ACTION BEING CHALLENGED

4.

Petitioner brings this instant Petition and challenges how his sentence is being

carried out, calculated, or credited by prison or parole authorities (for example, revocation or
calculation of good time credits).

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 36 of 89

5.

Petitioner is challenging the judgment of conviction entered by the Honorable

William H. Pauley, III of the United States District Court for the Southern District of New York
(Foley Square).
6.

Petitioner's underlying criminal matter is docketed at l:18-cr-00602-WHP-l andthe date of the judgment of conviction is August 21, 2018.
7.

Petitioner pied guilty to nine separate counts: (i) five counts of tax evasion, in

violation of26 U.S.C. § 7201; (ii) one count of making a false statement to a financial
institution, in violation of 18 U.S.C. § 1014; (iii) two counts of making unlawful campaign
contributions, in violation of 52 U.S.C. § 30109(d)(l)(A); and (iv) one count of making a false
statement to the Congress, in violation of 18 U.S.C. § 100l(a)(2).
8.

Petitioner pied guilty to the first eight counts on August 21, 2018, pursuant to aplea agreement.
9.

Petitioner pied guilty to the ninth count on November 29, 2018, pursuant to a plea

agreement with the Special Counsel's Office. The cases were consolidated for sentencing.
I 0.

The Court imposed a sentence of 36 months' imprisonment on the charges in the

SDNY case.

11.

The Court also imposed a concurrent sentence of two months' imprisonment on

the charge in the Special Counsel's Office case.
12.

Enacted on December 21, 2018, the First Step Act (hereinafter "FSA" or "TheAct") was the result of a bipartisan legislative effort to moderately overhaul the criminal justicesystem.
13.

Congress aimed to enhance public safety by improving the effectiveness andefficiency of the federal prison system with offender risk and needs assessment, individual risk2Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 37 of 89

reduction incentives and rewards, and risk and recidivism reduction. HR Rep. No. 115-699 at 22(2018). See United States v. Simmons, 375 F. Supp. 3d 379 (2 nd Cir. 2019).
14.

The Act states as follows:

Not later than 210 days after the date of enactment of this subchapter, the Attorney
General, in consultation with the Independent Review Committee authorized by the First
Step Act of 2018, shall develop and release publicly on the Department of Justice website
a risk and needs assessment system (referred to in this subchapter as the "System"),which shall be used to-(1) determine the recidivism risk of each prisoner as part of the intake process, andclassify each prisoner as having minimum, low, medium, or high risk for recidivism;(2) assess and determine, to the extent practicable, the risk of violent or serious
misconduct of each prisoner;(3) determine the type and amount of evidence-based recidivism reductio11 programmingthat is appropriate for each prisoner and assign each prisoner to such programming
accordingly, and based on the prisoner's specific criminogenic needs, and in accordancewith subsection (b);(4) reassess the recidivism risk of each prisoner periodically, based on factors including
indicators of progress, and ofregression, that are dynamic and that can reasonably be
expected to change while in prison;(5) reassign the prisoner to appropriate evidence-based recidivism reduction programs or
productive activities based on the revised determination to ensure that-(A) all prisoners at each risk level have a meaningful opportunity to reduce theirclassification during the period of incarceration;(B) to address the specific criminogenic needs of the prisoner; and(C) all prisoners are able to successfully participate in such programs;(6) determine when to provide incentives and rewards for successful participation inevidence-based recidivism reduction programs or productive activities in accordance withsubsection (e);(7) determine when a prisoner is ready to transfer into prerelease custody or supervised
release in accordance with section 3624; and3

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 38 of 89(8) determine the appropriate use of audio technology for program course materials withan understanding of dyslexia.
In carrying out this subsection, the Attorney General may use existing risk and needs
assessment tools, as appropriate.
See 18 U.S.C. 3632(a)(l)-(8).
15.

Upon entry, Federal Bureau of Prisons ("BOP") conducted the initial Risk andNeeds Assessment via the Prisoner Assessment Tool Targeting Estimated Risk and Need("PATTERN") too I.
16.

Petitioner was determined to have a minimum risk of recidivism.

17.

Petitioner has been successfully participating in the Act's authorized Evidence-

Based Recidivism Reduction Programming and Productive Activities since his entrance into FCIOtisville Satellite Camp.
18.

Petitioner, on November 27, 2019, had his second consecutive assessmentclassifying him, again, as minimum risk recidivism level.
19.

The Act states:(A) In general.--A prisoner, except for an ineligible prisoner under subparagraph (D),
who successfully completes evidence-based recidivism reduction programming or
productive activities, shall earn time credits as follows:(i) A prisoner shall earn 10 days ohime credits for every 30 days of successful
participation in evidence-based recidivism reduction programming or productive
activities.
(ii) A prisoner determined by the Bureau of Prisons to be at a minimum or low risk forrecidivating, who, over 2 consecutive assessments, has not increased their risk ofrecidivism, shall earn an additional 5 days of time credits for every 30 days of successful
participation in evidence-based recidivism reduction programming or productive
activities.

18 U.S.C.A. § 3632(d)(4)(A).
20.

As a result of Petitioner's risk assessment, he should receive 15 days of time

credit for each 30 days in the activities.

4

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 39 of 89

21.

The Act states further that "[t]ime credits earned under this paragraph byprisoners who successfully participate in recidivism reduction programs or productive activities
shall be applied toward time in prerelease custody or supervised release. The Director of the

Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into
prerelease custody or supervised release." Id. (Emphasis added).
22.

Furthermore, under the federal sentencing statutes: "[i]fthe Sentencing Court

included as part of the prisoner's sentence a requirement that the prisoner be placed on a term ofSupervised Release after imprisonment ... the Director of the Bureau of Prisons may transfer theprisoner to begin any such term of Supervised Release at an earlier date ... based on theapplication of time credits under Section 3632." 18 U.S.C. § 3521(g)(3).
23.

Petitioner's sentence included three (3) years of Supervised Release and underapplication of the Act, makes transfer to Supervised Release the highest application of earned
time credits.
24.

Additionally, § 3632(d)(6) of the FSA provides: "In addition, the incentives

described in this Subsection shall be in addition to any other rewards or incentives for which a
prisoner may be eligible."25.

Petitioner, as stated, received a three (3) year sentence of incarceration, in total,on all counts.
26.

Pursuant to The Act, Petitioner is entitled to fifty-four (54) days per sentenced year

as good time credit; this means that Petitioner is entitled to one hundred and sixty-two (162) days
credit for good time.

5

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 40 of 89

27.

Petitioner spent the following days incarcerated, all of which he would be entitledto credit for under the act, May 6, 2019 until May 21, 2020, then again from July 9, 2020 until July24, 2020, for a total of three hundred and ninety-five (395) days.
28.

Petitioner is entitled to the full fifteen (15) day credit under the act, for a total of

one hundred and ninety-seven (197) days.
29.

The total credit Petitioner is entitled to, when factoring in both his good time andhis First Step credits, is three hundred and fifty-nine (359) days.
30.

Petitioner's release date, pursuant to these credits, is May 29, 2021.

31.

Petitioner has also accumulated more than seven hundred (700) hours of "timecredits" as outlined and defined in§ 3632 (d)(4)(C) of the FSA.
32.

Petitioner has completed the following classes while incarcerated, with the hours

completed noted in parentheses behind each stated class: DTRM (24), Drug Education: Freedom
from Drugs (15), Interventions 2 (60), Health/Fitness (3), Victim Impact (26), Threshold Program(72), P.M.A. (24) and Business Start-Up (16).
33.

Furthermore, Petitioner worked at Water Treatment and the Pipe Shop H.V.A.C.

for a total of five hundred (500) hours.
34.

The applicable statutes provide no guidance as to how these hours are to be

calculated towards credit towards Petitioner's sentence.
35.

At the present time, despite Petitioner performing the above actions and taking

advantage of the time credits available under the Act, the Bureau of Prisons is not calculating thetime credits owed to Petitioner or informing Petitioner of where he stands.

6Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 41 of 89

36.

The Bureau of Prisons has failed, despite repeated and numerous requests by

Petitioner, through the appropriate and proper channels, to provide Petitioner with any calculationof time credits.
37.

As a result, Petitioner is unable to appropriately challenge the determination of the

Bureau of Prisons, as they refuse to make any determination.
38.

This matter must be resolved in the near future because if the Bureau continues tofail in its duties, the Petitioner is likely to be incarcerated for longer than is proper under the
statutes.
EARLIER CHALLENGES OF THE DECISION OR ACTION

39.

Petitioner has filed an administrative grievance about this matter and the

Respondents have continued to fail to make the required calculations.
40.

The issue is not that Petitioner disputes the Bureau of Prison's calculations of his

First Step time credits, the issue is that no agency or representative will provide him with any

calculation whatsoever regarding his time credits.
41.

Petitioner has submitted numerous requests to every arm of the Government he can,including the Department of Justice and Bureau of Prisons, in an effort to have them simply makesome - or any - calculation of his credits.
42.

The Government, initially, steadfastly refused to even reply to Petitioner.

43.

Petitioner has submitted a BP-9 and other administrative forms, as well as emailed

officials and representatives of the Government, in an effort to have the Government provide himwith the official calculation of his time credits.

7

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 42 of 89

44.

Petitioner was either ignored, told that "someone" (with no identity of who"someone" is) will look at it or that the calculations should have been done already and theGovernment is not sure why it has yet to be completed.
45.

The failure to make the needed calculations was made worse by the fact that

Petitioner provided the Bureau of Prisons the calculations and time credits as laid out above, thus,
perfonning nearly all of the work for the Bureau of Prisons.
46.

After all of the above, a representative from the Bureau of Prisons told Petitioner

that he would receive his calculation by December 14, 2020.
47.

December 14th came and went, and no calculation was provided.

48.

On December 15, 2020 Petitioner received a letter from the Bureau of Prisons with

their "calculations".
49.

The decision of the Bureau of Prisons on Petitioner's calculation was that there isno calculation - it stated that Petitioner was not entitled to any credits for his work performed at
FCI Otisville - addressing the issue of his five hundred (500) credit hours - but did not provide
any calculation for his FSA time, pursuant to the act.
50.

This "calculation" is nothing more than another delay tactic, as it goes against theplain language of the statute, as Petitioner is absolutely entitled to credit under the act, at the very
least, fifteen ( I 5) days a month.
51.

Petitioner is at a loss as to why the Bureau of Prisons would provide him acalculation, late, that would purposefully focus on a narrow issue raised in Petitioners letter, rather
than the most pressing issue - Petitioner's fifteen (15) day a month credit calculation.
52.

This stonewall tactic by the Government has functionally deprived Petitioner of any

meaningful administrative process in this matter.

8

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 43 of 89

53.

The administrative process is to be used to challenge the decision of theGovernment, i.e. once the Government asserts Petitioner's time credits and ultimate adjusted
release date, the administrative process would be used to challenge those determined time credits
or release date.
54.

Petitioner is unable to make any meaningful use of the administrative process as

the Government refuses to make any initial determination.
55.

Depending on the Bureau of Prisons' calculations, Petitioner could be eligible forrelease in a matter of weeks or months, making the harm suffered by Petitioner - incarceration
past his release date - near immeasurable and potentially immediate.
56.

Furthermore, the Government has offered no guidance whatsoever regarding the

calculation of Petitioner's time credits, as detailed above, making it possible that he has alreadyserved well past his release date, causing Petitioner further - and immediate - harm.
57.

The Government's above stated failure has effectively and completely locked

Petitioner out of the administrative process, as Petitioner has no decision to appeal.
58.

Any attempt by Petitioner to engage the Government in an effort to have themcalculate his First Step credits will be useless, as it will yield the same result as described above.
59.

Respondents have denied Petitioner's appeals aud have taken no meaningful action.

60.

Petitioner cannot receive meaningful relief at the moment as the Respondents havefailed to calculate his credits at all.
MOTION UNDER 28 U.S.C. §2255

61.

Petitioner has challenged the validity of his sentence as imposed by previously

filing a Motion under 28 U.S.C. §2255.

9Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 44 of 89

62.

The Court denied the Petitioner's motion, but he did not raise the issues hereinbecause they were not relevant to a motion under section 2255.
63.

This case does not concern immigration proceedings.

64.

As such, Petitioner is not seeking relief by filing appeals with the Board of

Immigration Appeals.
GROUNDS FOR RELIEF

65.

As shown above, the Petitioner has a right to time credits due to him under the First

Step Program.
66.

If relief is not granted, Petitioner will likely spend more time in confinement than

he is required to under the law.
67.

Such a result would be a fundamental denial of due process and a violation of

Petitioner's rights
68.

Due process requires application of afforded statutory rights granted by Congressand stands for the principle that "[m]inimum due process rights attach to statutory rights." Dia v.
Ashcroft, 353 F.3d 228, 239 (3rd Cir. 2003) (alteration in original) (quoting Marincas v. Lewis,
92 F.3d 195, 203 (3rd Cir. 1996)).
69.

A plaintiff must prove that he possessed a protected liberty (or property) interestand he was deprived of that interest without process to which he was constitutionally entitled. See
Bd. OfRegents of State Colleges v. Roth, 408 U.S. 564,569 (1972).
70.

Here, Petitioner can show that he will potentially be wrongfully deprived of his

liberty without relief.

10Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 45 of 89

REQUEST FOR RELIEF
WHEREFORE, Petitioner prays that this Court grant the fo llowing relief:( l ) Issue an Order requiring the Bureau of Prisons to calculate and apply the proper credits
owed to Petitioner under the statutes listed above;(2) Award Petitioner reasonable costs and attorneys' fees; and(3) Grant any other and further relief that th is Cou1t may deem fit and proper.
DATED: December 2 1, 2020
Respectfully submitted,

Isl Michael D. Cohen
MICHAEL D. COHEN
1399 Franklin Avenue Ste 200
Garden City, NY 11 530(646) 853-0114
mdcohen2 12@gmaiI.com

11

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 46 of 89

EXHIBITB

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 47 of 89
case 1:20-cv-10833-JGK Document 9-5 Filed 03/15/21 Page 1 of 4Federal Bureau of Prisons
FCI Otisville
Certificate of CompletionJ

MICHAEL COHEN
86067-054

In recognition of his participation in the INTERVENTION 2 Program
here at FCI Otisville, he is presented with this certificate of completion.
This certificate is hereby issued j!_1is 20 th d!ly ofFebmary, 2020)

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Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 49 of 89·,,

Case 1:20-cv-10833-JGK Document 9-5 Filed 03/15/21 Page 3 of 4

Certificate of Completion
OF
Doing Time With The Right Mind'·.)

Colten, Micltael
86067-054
In recognition of his participation in the DTRM Program - EFFECTIVE ALTERNATIVES Program here at FCI
Otisville Camp, he is presented with this Certificate of Completion.
This certificate is hereby issued this 3rd day of September, 2019

I_)

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 50 of 89
Case 1:20-cv-10833-JGK Document 9-5 Filed 03/15/21 Page 4 of 4Federal Bureau of Prisons
FCI Otisville
Certificate of Completio11)

MICHAEL COHEN

86067-054
In recognition of his participation in the Drug Education - Freedom From Drugs
Program here at FCI Otisville, he is presented with this certificate of completion of the program.
This certificate is hereby issued this 13 th day of August, 2019

k ~WV\,~ - ~II,,~r,'6,1 1) c,.c·fi'.,,. utrP· <:. )Dr. J. Bowe, PsyD, Drug Abuse Program Coordinator
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0/Ary{j~E. M. Dariotis, M.Ed., Drug Treatment Specialist)

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 51 of 89

DAVID M. SCHWARTZ, ESQ. LLM
546 Fifth Avenue, 6'' Floor, New York, NY 10036 c: 5l6Ji66.5425 E: david@davidschwarlzesq.com

May 31, 2023

VIA CM/ECF & EMAIL
Honorable Jesse M. Furman
United States District Judge' Southern DistricfofNew York500 Pearl Street
New York, New York 10007
Re:

United States v. Michael Cohen. l 8-Cr-602 and 18-Cr-850

Dear Judge Fmman:~----

Please be advised that David M Schwartz, Esq. represents Mr. Michael Cohen, for purposesof seeking your Honor's intervention in requesting that you discharge Mr. Cohen from Supervised
Release. On December 6, 2022, we made the same application to your honor in which you denied
our application on December 19, 2022, without prejudice as premature, The Court state• in thatdecision that "the question is close", but on balance the factors weighed in favor of the govemment.
Your honor certainly left the door open for future applications and we are now respectfully renewing
this same application, Mr, Cohen's term of supervised release commenced on November 22, 2021,
and he has now served approximately two-thirds of bis three-year (el'm.
Under 18 U.S.C. § 3583(e)(2), the court may, after considering the applicable factors in 18
U.S.C, § 3553(a), "modify, reduce, or enlarge the conditions of supervised release, at any time ptior
to the expiration or termination of the term of supervised release, pursuant to the provisions of theFelleral Rules of Criminal Procedure relating to modification of probation and the provisions applicableto the initial setting of the teims and conditions of post-release supervision[.]"Obviously, given the profile of Mr, Cohen's prosecution, it is widely understood that Mr.
Cohen endeavored to provide meaningful assistance to the government, at least as far as thisterm is colloquially understood. 1There is no question that Mr, Cohen and his family have paid theprice for his transgressions. No doubt, it will also not be lost on this court that he has taken full
responsibility for his actions.
I

Mr, Cohen proved to be an invaluable governmental asset by aSsisting nuthmities in various investigations, Some of hls-aetable.centrihutieas inelude·-.- -l.

Manhattan District Attorney's Office: Three meetings while in J'1'ison and 12 in total. Mr. Cohen ha4 no obligation tomeet with the Manhattan District Attorney's Office, and he received no benefit from doing so.
2. New York Attorney General's Office: Three meetings with Attorney General Letitia James both before andafter Mr, Cohen's sentence. He voluntarily provided the NYAG with scvernl important 4ocutnents.
3, Southern District of New York: Mr. Cohen met with tl1e SONY and Special Counsel's Office (SCO) of tl1e
Department of Justice before the entry of his plea in Augllst 2018. Mr. Cohen pal'ticipated in seven voluntaryinterviews with both offices.
4. Special Counscl1s Office: Mr. Cohen met with the SCO roughly ten times regarding the Mueller probealbeit the infjuiries tailing outsklo conventional framework in which courts routinely engage in.
5. United States Congress: Specifically, Mr. Cohen met with the House Oversight Committee on three occasions,the House Intelligence Committee on three occasions, the Senate Intelligence Committee on three occasions,and individual Members of Congress for countless hours preparing them for hearings.

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 52 of 89
Honomble Jesse M, Fmman
United States v. Miciinel Cohen, 18-Cr-602 nnd 18-Cr..850
May 31, 2023
Pnge2

Supervised Release is not intended to be further punishment, per a published opinion of the 7th Circuit
dealing with supervised release 1•.•• 1) the purpose of supervised release is not to inflict more punishment for
the underlying crime; and 2) the "decompression state" between prison and full release is accomplished, thenthere is no reason to keep a defendant on supervision any longer. Prior 7th Circuit decisions have consistently
held that there are factors that mark this decompression state and satisfy that requirement. As stated, the five
purposes of supervision are:
1, Rehabilitation: has one completed all treatment and aftercare?
2. Deterrence: is one effectively deteffed from committing future federal crimes?
3. Training and Treatment: has one had enough treatment and education to stay clean from
crime and to keep stable employment?
4. Protection of the public: This lends to treatment, stability, and reduced risk of committing
new crimes.
5. Reduction ofrecldivism: What is one's quantifiable risk to commit new or the same
crimes?
If there is anyone who fits the 7n, Circuit's profile of a candidate for termination of supervised
release, it is Mr. Cohen. In the 19 months since his home confinement, he has shown time and again that hehas met all the requirements of the decompression state listed above.
We would respectfully venture further that Mr. Cohen presents no risk ofrecidivism and is amodel candidate for a cessation of Supervisory Release. Indeed "[i]n the federal courts, supervision is... a way to monitor the activities and behavior of people released to the connnunity by the federal courts
or paroling authorities ... [and] ... an opportunity to help offenders reintegrate into the community
following a period of incarceration... The desired outcomes of supervision are the execution of thesentence and the protection of the community by reducing the risk and recurrence of crime andmaximizing defendant success during the period of supervision and beyond. The goal in all cases is the
successful completion of the term of supervision, during which the defendant commits no new crimes;
is held accountable for victim, family, community, and other court-imposed responsibilities; andprepares for continued success (i.e., refraining from further crime) through improvements in his or her
conduct and condition. 11 2
The goals of supervision have been fulfilled. Mr. Cohen has exceeded all his court-imposed
responsibilities, is a loving husband and father, presents 110 risk ofrecurrence, and generally does not
require the social services support to appropriately reintegrate into society. In fact, continuing
supervision is his only remaining hinderance in terms of being ·able to reassimilate into thecommunity.
MI. Cohen began serving his sentence of 36 months imprisonment and three years ofSupervised Release on or about May 6, 2019. Mr. Cohen's petition for a Writ of Habeas Corpus,
pursuant to 28 U,S,C. § 2241, was dismissed on April 20, 2021, for procedural reasons. Specifically,
the court articulated that his petition was denied because it was premature and not ripe for review
considering the First Step Act was not fully implemented, Altl10ugh the petition was rejected for thenoted reasons, we ask this court to reconsider it as a factor in Mr. Cohen's current application for adischarge from Supervised Release. The instrumental arguments made in favor then should otherwise
obtain now. 3
1 https://pcr-consultants,cotn/federal-supervised-release-is-not~punishment/
2 http://www.uscourts,gov/services-fonns/probatton-and-pret:rlal-services/probation-and-pt'etrlal~services-supervisiono Mr. Cohen's Habeas Co1pusPetttion enunciated that he had aright to time credits under the First Step Progi-am and if not granted, hewould spend more time in confin~ment than required under the law. This argument was pl'emised as adenial of Mr. Cohen's
fundamental due process rights, See Bx. A attached,Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 53 of 89
Honomble Jesse M, Furman
Unlted States v, Michael Cohen, 18-Cr-602 and LS-Cr-850
May 31, 2023

Page3

While Mr. Cohen was imprisoned at Otisville, he eamed numerous certificates uponcompletion of many programs that would have otherwise counted towards First Step Act points.
Because of the timing, Mr. Cohen was never credited with those points. These programs are just one
barometer indicative of his rehabilitation which favor his discharge from Supervised Release,
Fmihermore, Mr. Cohen reached out to Darrin Howard, Regional Counsel of the Northeast Regionof the Federal Bul'eau of P:risons, more than 30 times regarding his First Step Act points without
receiving any correspondence,
We are asking that you consider the totality of the circumstances surr01mding theremainder of Mr. Cohen's tenn of Supervised Release. Once again, it bears repeating that Mr.
Cohen has fully acknowledged his crimes, and his participation with the government offices, as
articulated in Footnote 1, has provided substantial and meaningful assistance in otherprosect1tions and investigations. Given the volume and quality of evidence that Mr. Cohen has
provided to authorities, at great personal expense, we believe that an em·ly release would
encourage similarly situated figures to take m1 active role in cooperating in high profile
investigations that are rife with consequence.
It warrants noting that, Mr. Cohen paid his IRS tax deficiency prior to his sentencing m1d
all fines mid penalties have been paid. He had an additional 12 meetings with the Mmtl1attan
District Attorney's office and has committed no offenses while he was incarcerated or while hehas been in home confinement. We also ask that you consider the extensive cooperation Mr.
Cohen has given to prosecutors from various agencies as well as oti1er governmental authorities
for which he has never received any credit for. Justice would be served, in our humble
assessment, if you factor all the cooperation into this decision on our application for terminationof Supervised Release.

It is also worth l!Oling that Mr. Cohen has indeed faced hardship because of homeconfmement. Mr. Cohen's elderly parents, one of whom is a Holocaust survivor, live in Florida.

Mr. Cohen needs to be able to spend moremeaningfol time with them as.they're ageing at home.
Not being able to get to his parents quickly, if they need him, weighs heavily on Mr. Cohen andhe is very aware that the time they have left together may be limited. While it is true that Mr.
Cohen has been allowed intematiorutl travel, the onus of such travel is not a light one. International
travel requires that Mr. Cohen be detained by INS upon re-entry into the United States and be
held up to an hour while INS checks with DOJ and the Probation Office ifhe had the authorization
to travel internationally. This has proven to be a stressful and frustrating experience, so much sothat Mr. Cohen has turned down prestigious invitations to speak overseas, such as highlighted in theenclosed invitation from The Oxford Union in Great Britain (See Bx. C attached).

4See Ex, B attached' See Ex. C attachedCase 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 54 of 89
Honorable Jesse M. Furman
United States: v. Michael Cohen, 18-0:--602 and 18-Cl'-850
May 31, 2023
Pago4

Furthel·, in sum and substance, Mr. Cohen has substantively complied with the spirit of theFirst Step Act. He successfully completed evidence-basedrecidivismreductionprogramming andwas determined to be at a low risk for recidivating; thus, he is 1he definition of an Eligible Prisoner,
To this end, it warrants noting that he received numerous Certificates at FCI Otisville including
Doing Time with The Right Mind, Freedom from Dmgs Program, Victim Impact Odentation
Workshop, and the Intervention 2 Program,
Michael Cohen has clearly demonstrated that he has been rehabilitated, and given the fact that
he has committed no farther offenses; has been a model inmate in prlson, home confinement andsupervised release; has substantially cooperated with all government authorities; substantiallycomplied with the First Step Act program (receiving no credit on technical grounds) we respectfullyurge that Michael Cohen is the perfect candidate to be discharged from Supervised Release which
would communicate to the wider community tl1atjustice is tempered by mercy and is proportionallyadministered.

We appreciate Your Honor's consideration.
Respectfully submitted,

David M Schwartz, Esq.
Attorney for Michael Cohen

cc: All counsel ofrecord (via ECF)

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 55 of 89

EXHIBIT A

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 56 of 89

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x:
MICHAEL D. COHEN,
Petitioner,

No.

v.
UNITED STATES OF AMERICA, and
MICHAEL CARVAJAL, DIRECTOR
OF THE FEDERAL BUREAU OF
PRISONS
Respondents.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x:

PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241
PERSONAL INFORMATION
1.

Petitioner, Michael D. Cohen, is a New York resident that is, at the time of thisfiling, currently on compassionate release from FCI Otisville Satellite camp due to the COVID-19
pandemic.
2.

The Respondents in this matter are the United States Govermnent and Michael

Carvajal, the Director of the Federal Bureau of Prisons.
3.

No petition for a writ of habeas corpus has previously been filed in any court toreview Petitioner's case.

DECISION OR ACTION BEING CHALLENGED
4.

Petitioner brings this instant Petition and challenges how his sentence is being

carried out, calculated, or credited by prison or parole authorities (for example, revocation or
calculation of good time credits).

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 57 of 89

5.

Petitioner is challenging the judgment of conviction entered by the Honorable

William H. Pauley, III of the United States District Comt for the Southern District of New York
(Foley Square).
6.

Petitioner's underlying criminal matter is docketed at 1:18-cr-00602-WHP-1 andthe date of the judgment of conviction is August 21, 2018.
7.

Petitioner pied guilty to nine separate counts: (i) five counts of tax evasion, in

violation of 26 U.S.C. § 7201; (ii) one count of making a false statement to a financial
institution, in violation of 18 U.S.C. § 1014; (iii) two counts of making unlawful campaign
contributions, in violation of52 U.S.C. § 30109(d)(l)(A); and (iv) one count of making a false
statement to the Congress, in violation of18 U.S.C. § 100l(a)(2).
8.

Petitioner pied guilty to the first eight counts on August 21, 2018, pursuant to aplea agreement.
9.

Petitioner pied guilty to the ninth count on November 29, 2018, pursuant to a plea

agreement with the Special Counsel's Office. The cases were consolidated for sentencing.
10.

The Court imposed a sentence of36 months' imprisonment on the charges in the

SDNY case.
11.

The Court also imposed a concurrent sentence of two months' imprisorunent on

the charge in the Special Counsel's Office case.
12.

Enacted on December 21, 2018, the First Step Act (hereinafter "FSA" or "TheAct") was the result of a bipartisan legislative effort to moderately overhaul the criminal justicesystem.
13.

Congress aimed to enhance public safety by improving the effectiveness andefficiency of the federal prison system with offender risk and needs assessment, individual risk2Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 58 of 89

reduction incentives and rewards, and risk and recidivism reduction. HR Rep. No. 115-699 at 22(2018). See United States v. Simmons, 375 F. Supp. 3d 379 (2 nd Cir. 2019).
14.

The Act states as follows:

Not later than 210 days after the date of enactment of this subchapter, the Attorney
General, in consultation with the Independent Review Committee authorized by the First
Step Act of 2018, shall develop and release publicly on the Department ofJustice website
a risk and needs assessment system (referred to in this subchapter as the "System"),which shall be used to--(!) determine the recidivism risk of each prisoner as part of the intal<e process, andclassify each prisoner as having minimum, low, medium, or high risk for recidivism;(2) assess and determine, to the extent practicable, the risk of violent or serious
misconduct of each prisoner;(3) determine the type and amount of evidence-based recidivism reductioi1 programmingthat is appropriate for each prisoner and assign each prisoner to such programming
accordingly, and based on the prisoner's specific criminogenic needs, and in accordancewith subsection (b);(4) reassess the recidivism risk of each prisoner periodically, based on factors including
indicators of progress, and ofregression, that are dynamic and that can reasonably be
expected to change while in prison;(5) reassign the prisoner to appropriate evidence-based recidivism reduction programs or
productive activities based on the revised determination to ensure that-·(A) all prisoners at each risk level have a meaningful opportunity to reduce theirclassification during the period of incarceration;(B) to address the specific criminogenic needs of the prisoner; and(C) all prisoners are able to successfully participate in such programs;(6) determine when to provide incentives and rewards for successful participation inevidence-based recidivism reduction programs or productive activities in accordance withsubsection (e);(7) detennine when a prisoner is ready to transfer into prerelease custody or supervised
release in accordance with section 3624; and3

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 59 of 89(8) determine the appropriate use of audio technology for program course materials withan understanding of dyslexia.
In carrying out this subsection, the Attorney General may use existing risk and needs
assessment tools, as appropriate.
See 18 U.S.C. 3632(a)(l)-(8).
15.

Upon entry, Federal Bureau of Prisons ("BOP") conducted the initial Risk andNeeds Assessment via the Prisoner Assessment Tool Targeting Estimated Risk and Need("PATTERN") tool.
16.

Petitioner was determined to have a minimum risk of recidivism.

17.

Petitioner has been successfully participating in the Act's authorized Evidence-

Based Recidivism Reduction Programming and Productive Activities since his entrance into FCIOtisville Satellite Camp.
18.

Petitioner, on November 27, 2019, had his second consecutive assessmentclassifying him, again, as minimum risk recidivism level.
19.

The Act states:(A) In general.--A prisoner, except for an ineligible prisoner under subparagraph (D),
who successfully completes evidence-based recidivism reduction programming or
productive activities, shall earn time credits as follows:(i) A prisoner shall earn 10 days of time credits for every 30 days of successful
participation in evidence-based recidivism reduction programming or productive
activities.
(ii) A prisoner determined by the Bureau of Prisons to be at a minimum or low risk forrecidivating, who, over 2 consecutive assessments, has not increased their risk ofrecidivism, shall earn an additional 5 days of time credits for every 30 days of successful
participation in evidence-based recidivism reduction programming or productive
activities.

18 U.S.C.A. § 3632(d)(4)(A).
20.

As a result of Petitioner's risk assessment, he should receive 15 days oftime

credit for each 30 days in the activities.

4

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 60 of 89

2 I.

The Act states further that "[t]ime credits earned under this paragraph byprisoners who successfully participate in recidivism reduction programs or productive activities

shall be applied toward time in prerelease custody or supervised release. The Director of the
Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into
prerelease custody or supervised release." Id. (Emphasis added).
22.

Furthennore, under the federal sentencing statutes: "(i]fthe Sentencing Court

included as part of the prisoner's sentence a requirement that the prisoner be placed on a term ofSupervised Release after imprisonment ... the Director of the Bureau of Prisons may transfer theprisoner to begin any such term of Supervised Release at an earlier date ... based on theapplication of time credits under Section 3632." 18 U.S.C. § 352l(g)(3).
23.

Petitioner's sentence included three (3) years of Supervised Release and underapplication of the Act, makes transfer to Supervised Release the highest application of earned
time credits.
24.

Additionally, § 3632(d)(6) of the FSA provides: "In addition, the incentives

described in this Subsection shall be in addition to any other rewards or incentives for which a
prisoner may be eligible."25.

Petitioner, as stated, received a three (3) year sentence of incarceration, in total,on all counts.
26.

Pursuant to The Act, Petitioner is entitled to fifty-four (54) days per sentenced year

as good time credit; this means that Petitioner is entitled to one hundred and sixty-two (162) days
credit for good time.

5

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 61 of 89

27.

Petitioner spent the following days incarcerated, all of which he would be entitledto credit for under the act, May 6, 2019 until May 21, 2020, then again from July 9, 2020 until July24, 2020, for a total of three hundred and ninety-five (395) days.
28.

Petitioner is entitled to the full fifteen (15) day credit under the act, for a total of

one hundred and ninety-seven (197) days.
29.

The total credit Petitioner is entitled to, when factoring in both his good time andhis First Step credits, is three hundred and fifty-nine (359) days.
30.

Petitioner's release date, pursuant to these credits, is May 29, 2021.

31.

Petitioner has also accumulated more than seven hundred (700) hours of "timecredits" as outlined and defined in§ 3632 (d)(4)(C) of the FSA.
32.

Petitioner has completed the following classes while incarcerated, with the hours

completed noted in parentheses behind each stated class: DTRM (24), Dmg Education: Freedom
from Dmgs (15), Interventions 2 (60), Health/Fitness (3), Victim Impact (26), Threshold Program(72), P.M.A. (24) and Business Start-Up (16).
33.

Furthermore, Petitioner worked at Water Treatment and the Pipe Shop H.V.A.C.

for a total of five hundred (500) hours.
34.

The applicable statutes provide no guidance as to how these hours are to be

calculated towards credit towards Petitioner's sentence.
35.

At the present time, despite Petitioner performing the above actions and taking

advantage of the time credits available under the Act, the Bureau of Prisons is not calculating thetime credits owed to Petitioner or informing Petitioner of where he stands.

6Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 62 of 89

36.

The Bureau of Prisons has failed, despite repeated and numerous requests by

Petitioner, through the appropriate and proper channels, to provide Petitioner with any calculationof time credits.
37.

As a result, Petitioner is unable to appropriately challenge the detennination of the

Bureau of Prisons, as they refuse to make any detennination.
38.

This matter must be resolved in the near future because if the Bureau continues tofail in its duties, the Petitioner is likely to be incarcerated for longer than is proper under the
statutes.

EARLIER CHALLENGES OF THE DECISION OR ACTION
39.

Petitioner has filed an administrative grievance about this matter and the

Respondents have continued to fail to make the required calculations.
40.

The issue is not that Petitioner disputes the Bureau of Prison's calculations of his

First Step time credits, the issue is that no agency or representative will provide him with any
calculation whatsoever regarding his time credits.

41.

Petitioner has submitted numerous requests to every arm of the Government he can,including the Department of Justice and Bureau of Prisons, in an effort to have them simply makesome - or any-calculation of his credits.
42.

The Government, initially, steadfastly refused to even reply to Petitioner.

43.

Petitioner has submi(ied a BP-9 and other administrative fonns, as well as emailed

officials and representatives of the Government, in an effort to have the Govermnent provide himwith the official calculation of his time credits.

7

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 63 of 89

44.

Petitioner was either ignored, told that "someone" (with no identity of who"someone" is) will look at it or that the calculations should have been done already and theGovernment is not sure why it has yet to be completed.
45.

The failure to make the needed calculations was made worse by the fact that

Petitioner provided the BUl'eau of Prisons the calculations and time credits as laid out above, thus,
performing nearly all of the work for the Bureau of Prisons.
46.

After all of the above, a representative from the Bureau of Prisons told Petitioner

that he would receive his calculation by December 14, 2020.
47.

December 14th came and went, and no calculation was provided.

48.

On December 15, 2020 Petitioner received a letter from the Bureau of Prisons with

their "calculations".
49.

The decision of the Bureau of Prisons on Petitioner's calculation was that there isno calculation - it stated that Petitioner was not entitled to any credits for his work performed at
FCI Otisville - addressing the issue of his five hundred (500) credit hours - but did not provide
any calculation for his FSA time, pursuant to the act.
50.

This "calculation" is nothing more than another delay tactic, as it goes against theplain language of the statute, as Petitioner is absolutely entitled to credit under the act, at the very
least, fifteen (I 5) days a month.
51.

Petitioner is at a loss as to why the Bureau of Prisons would provide him acalculation, late, that would purposefully focus on a narrow issue raised in Petitioners letter, rather
than the most pressing issue - Petitioner's fifteen (15) day a month credit calculation.
52.

This stonewall tactic by the Government has functionally deprived Petitioner of any

meaningful administrative process in this matter.

8

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 64 of 89

53.

The administrative process is to be used to challenge the decision of theGovernment, i.e. once the Govermnent asserts Petitioner's time credits and ultimate adjusted
release date, the administrative process would be used to challenge those determined time credits
or release date.
54.

Petitioner is unable to make any meaningful use of the administrative process as

the Government refuses to make any initial determination.
55.

Depending on the Bureau of Prisons' calculations, Petitioner could be eligible forrelease in a matter of weeks or months, making the harm suffered by Petitioner - incarceration
past his release date - near immeasurable and potentially immediate.
56.

Furthermore, the Government has offered i:to guidance whatsoever regarding the

calculation of Petitioner's time credits, as detailed above, making it possible that he has alreadyserved well past his release date, causing Petitioner further - and immediate - harm.
57.

The Government's above stated failure has effectively and completely locked

Petitioner out of the administrative process, as Petitioner has no decision to appeal.
58.

Any attempt by Petitioner to engage the Government in an effort to have themcalculate his First Step credits will be useless, as it will yield the same result as described above.
59.

Respondents have denied Petitioner's appeals and have taken no meaningful action.

60.

Petitioner cannot receive meaningful relief at the moment as the Respondents havefailed to calculate his credits at all.
MOTION UNDER 28 U.S.C. §2255

61.

Petitioner has challenged the validity of his sentence as imposed by previously

filing a Motion under 28 U.S.C. §2255.

9Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 65 of 89

62.

The Court denied the Petitioner's motion, but he did not raise the issues hereinbecause they were not relevant to a motion under section 2255.
63.

This case does not concern immigration proceedings.

64.

As such, Petitioner is not seeking relief by filing appeals with the Board of

Immigration Appeals.

GROUNDS FOR RELIEF
65.

As shown above, the Petitioner has a right to time credits due to him under the First

Step Program.
66.

If relief is not granted, Petitioner will likely spend more time in confinement than

he is required to under the law.
67.

Such a result would be a fundamental denial of due process and a violation of

Petitioner's rights
68.

Due process requires application of afforded statutory rights granted by Congressand stands for the principle that "[m]inimum due process rights attach to statutory rights." Dia v.
Ashcroft, 353 F.3d 228, 239 (3rd Cir. 2003) (alteration in original) (quoting Marincas v. Lewis,
92 F.3d 195, 203 (3rd Cir. 1996)).
69.

A plaintiff must prove that he possessed a protected liberty (or property) interestand he was deprived of that interest without process to which he was constitutionally entitled, See
Bd. Of Regents of State Colleges v. Roth, 408 U.S. 564,569 (1972).
70.

Here, Petitioner can show that he will potentially be wrongfully deprived of his

liberty without relief.

10Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 66 of 89

REQUEST FOR RELIEF
WHEREFORE, Petitioner prays that this Court grant the following relief:(1) Issue an Order requiring the Bureau of Prisons to calculate and apply the proper credits
owed to Petitioner under the statutes listed above;(2) Award Petitioner reasonable costs and attorneys' fees; and(3) Grant any other and further relief that this Court may deem fit and proper.
DATED: December 21, 2020
Respectfully submitted,

Isl Michael D. Cohen
MICHAEL D. COHEN
1399 Franklin Avenue Ste 200
Garden City, NY 11530(646) 853-0114
mdcohen2 l 2@gmail.com

11

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 67 of 89

EXHIBITB

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 68 of 89
cas·e 1:20-cv-10833-JGK Document 9-5 Filed 03/15/21 Page 1 of 4Federal 13-ure.am o:f Prisons
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In recognition of his participation in the·INJ:ER~NTION 2 Program
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Case 1:20-cv-10833-JGK Document 9-5 Filed 03/15/21 Page 3 of 4

Certificate of Completion
OF
Doing Time With The Right Mind

'"-,,

.)

Cohen, Michael
86067-054
In recognition of his participation in the DTRM Program -EFFECTIVE ALTERNATIVES Program here at FCI
Otisville Camp, heis presented with this Certificate of Completion.
This certificate is hereby issued this 3rd day of September, 2019,)-·

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 71 of 89
Case 1:20-cv-10833-JGK Document 9-5 Filed 03/15/21 Page 4 of 4Federal Bureau of Prisons
FCI Otisville
Certificate of Completion

7

,·£!T

MICHAEL COHEN

86067-054
In recognition of his participation in the Drug Education - Freedom From Drugs
Program here at FCI Otisville, he is presented with this certificate of completion of the progrmn.
This ce1tificate is hereby issued this 13ct, day of August, 2019,;,,1.;--;-

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E. M. Dariotis,. M.Ed., Drug Treatment Specialist

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 72 of 89

the OXFORD UNION
Matthew Dick

President
Direct: +44 (0) 1865 241353
Mobile: +44 (0) 7510 0799 I 8President@oxford-union.org
Monday 20th March 2023
Dear Mr Cohen,

I hope this letter finds you well. I am writing to you with an invitation to speak at the Oxford Union Society. This year the Union
will be celebrating its bicentenary; 200 years ago, a group of Oxford sn1dents met in secret to found a society in which they could
freely discuss the matters of religion and politics outlawed by the University. Throughout our history, we have played host toworld leaders from US Presidents Reagan, Nixon, Carter, and Clinton, lo Sir Winston Churchill, Malcolm X, HH the Dalai Lama,and HM Queen Elizabeth II and global icons like Sir Elton John, Diego Maradona, and Albert Einstein. We are immensely excited
to celebrate our rich history whilst looking forwards to what the next two centuries wiU bring.
We would be honored if you would be a part of that celebration and contribute to our history. Across the course of our 'Trinity
Tem1', we are planning a series of talks, addresses, Q&As, and interviews with fascinating and world-famous individuals. Our
members and T would love to welcome you to our historic premises in the centre of the University of Oxford to address ourmembers and participate in a 200 year old tradition. The tenn runs from the 24th April 2023 to the 17th June 2023 and we would
be delighted to welcome you to Oxford on any weekday in that period.
Despite initially being close to Trump, you've become one of his most ardent critics in recent years. You shed light on how Tmmp
violated election laws during his campaign, as we ll as the interference between his campaign teams and people affiliated to
Vladimir Putin. Your book Disloyal: A Memoir, your podcast, and your YouTube series provide a refreshing insight into Tmmp
and looming indictments. It would be a privilege to host you to discuss your life career, and your time in the world of law,business, and politics.

I would be happy to answer any questions you may have and facilitate your visit however possible. lt would be a great honour towelcome you to Oxford and I sincerely hope you will be able to join us.
Please do not hesitate to contact me should you have any wish to discuss this invitation further. If you are interested, please let us
know your availability by April 10th.
Yours sincerely,

Matthew Dick

President
Magdalen College

The Oxfor d Union, Frewin Court, Oxford, OXl 3JB, Great Britain
Tel : +44 (0) 1865 241 353 Web: www.oxford-union.org

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 73 of 89

EXHIBITB

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 74 of 89

May 30,2023

VIA CM/ECF & EMAIL
Honorable Jesse M. Furman
United States District Judge
Southern District ofN ew York500 Pearl Street
New York, New York 10007

Re:

United States y. Michael Cohen. 18-Cr-602 and 18-Cr-850

Dear Judge Furman:
Please be advised that the Law Offices ofGerstman Schwaitz LLP represents Mr. Michael
Cohen, for purposes of seeking your Honor's intervention in requesting that you discharge Mr.
Cohen from Supervised Release. On December 6, 2022, we made the same application to yourhonor in which you denied our application on December 19, 2022, without prejudice aspremature. We are now respectfully bringing the same application in which Mr. Cohen's term ofsupervised release commenced on November 22, 2022 and he has served over one year of his
release.
Under 18 U.S.C. § 3583(e)(2), the court may, after considering the applicable factors in 18
U.S.C. § 3553(a), "modify, reduce, or enlarge the conditions of supervised release, at any timeprior to the expiration or termination of the tenn of supervised release, pursuant to the provisionsof the Federal Rules of Criminal Procedure relating to modification ofprobatiou and the provisions
applicable to the initial setting of the terms and conditions of post-release supervision[.]"Obviously, given the profile of Mr. Cohen's prosecution, it is widely understood that Mr.
Cohen endeavored to provide meaningful assistance to the government, at least as far as this term
is colloquially understood. 1There is no question that Mr. Cohen and his family have paid the price
1 Mr. Cohen proved to be an invaluable governmental asset by assisting authorities in various investigations. Some of his
notable contributions include:
I. Manhattan District Attorney's Office: Three meetings while in prison and 12 in total. Mr. Cohen had no
obligation to meet with the Manhattan District Attorney's Office, and he received no benefit from doing so.
2. New York Attorney General's Office: Three meetings with Attorney General Letitia James both before andafter Mr. Cohen's sentence. He voluntarily provided the NYAG with several important docmnents.
3. Southem District of New York: Mr. Cohen met with the SONY aod Special Counsel's Office (SCO) of the
Department of Justice before the ently of his plea in August 2018. Mr. Cohen participated in 7 voluntaiyinterviews with both offices.
4. Special Counsel's Office: Mr. Cohen met with the SCO roughly IO times regarding the Mueller probealbeit the inquiries falling outside conventional framework in which courts routinely engage in.
5. United States Congress: Specifically, Mr. Cohen met with the House Oversight Committee on three occasions,the House Intelligence Committee on three occasions, the Senate Intelligence Committee on three occasions,and indiVidual Members of Congress for countless hours preparing them for hearings.

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 75 of 89

for his transgressions. No doubt, it will also not be lost on this court that he has taken full
responsibility for his actions.
We would respectfully venture further that Mr. Cohen presents no risk ofrecidivism andis a model candidate for a cessation of Supervisory Release. Indeed "[i]n the federal courts,
supervision is ... a way to monitor the activities and behavior of people released to the community
by the federal courts or paroling authorities .... [and] ... an opportunity to help offenders reintegrate
into the community following a period of incarceration... The desired outcomes of supervision are
the execution of the sentence and the protection of the community by reducing the risk andrecurrence of crime and maximizing defendant success during the period of supervision andbeyond. The goal in all cases is the successful completion of the term of supervision, during which
the defendant commits no new crimes; is held accouutable for victim, family, community, andother court-imposed responsibilities; and prepares for continued success (i.e., refraining fromfurther crime) through improvements in his or her conduct and condition. "2

It is clear that the goals of supervision have been fulfilled. Mr. Cohen has exceeded all of
his court-imposed responsibilities, is a loving husband and father, presents no risk of recurrence,and generally does not require the social services support to appropriately reintegrate into society.
In fact, continuing supervision is his only remaining hinderance in terms of being able toreassimilate into the community.
Mr. Cohen began serving his sentence of 36 months imprisomnent and 3 years ofSupervised Release on or about May 6, 2019. Mr. Cohen's petition for a Writ of Habeas Corpus,
pursuant to 28 U.S.C. § 2241, was dismissed on April 20, 2021, for procedural reasons.
Specifically, the court articulated that his petition was denied because it was premature and notripe for review considering the First Step Act was not fully implemented. Although the petition
was rejected for the noted reasons, we ask this court to reconsider it as a factor in Mr. Cohen'scurrent application for a discharge from Supervised Release. The instrumental arguments made infavor then should otherwise obtain now. 3
While Mr. Cohen was imprisoned at Otisville, he earned numerous certificates uponcompletion of many programs that would have otherwise counted towards First Step Act points.4
Because of the timing, Mr. Cohen was never credited with those points. These programs are just

htt s•//www uscourts o /serv1ces-fonns!prohation-and-nret;rial-services/orobation-and-nretrial-servicessnneryision
3

Mr. Cohen's Habeas Corpus Petition enunciated that he had a right to time credits under the First Step Programand if not granted, he would spend more time in confinement than required under the law. This argument waspremised as a denial of Mr. Cohents fundamental due process rights. See Ex. A attached.
4 See Ex. B attached.

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 76 of 89

one barometer indicative of his rehabilitation which favor his discharge from Supervised Release.
Fmthermore, Mr. Cohen reached out to Danin Howard, Regional Counsel of the Northeast Regionof the Federal Bureau of Pl isons, more than 30 times regarding his First Step Act points without
receiving any correspondence.
Of course, as a m atter of law, Judge John K.oeltl's dete1111ination that Mr. Cohen's
previous application for a Wl it of Habeas Corpus was premature was spot on. However, over a
year has passed since, and with this in mind, we respectfully request that this court abridge Mr.
Cohen's tenn of Supervised Release that sta,ted on November 22, 2021.
We are as.king that you consider the totality of the circumstances su1Tou.nding theremainder of Mr. Cohen's te1m of Supervised Release. Once again, it b ears repeating that Mr.
Cohen has fully acknowledged his crimes, and his pal ticipation with the government offices, as
aiticulated in Footnote 1, has provided substantial and meaningful assistance in otherprosecutions and investigations. Given the volume and quality of evidence that Mr. Cohen has
provided to authorities, at great personal expense, we believe that an early release would
encourage similarly situated figures to take an active role in coop erating in high profile
investigations that are rife with consequence.

It warrants noting that, Mr. Cohen paid his IRS tax deficiency prior to his sentencing andall fines and penalties have been paid. He had an additional 12 meetings with the Manhattan
District Attorney's office and has conunitted no offenses while h e was incarcerated or while hehas b een in home confinement. W e also ask that you consider the extensive cooperation Mr.
Cohen has given to prosecutors from various agencies as well as other govenm1ental authorities
for which he has never received any credit for. Justice would b e served in our humble
assessment if you factor all the cooperation into this decision on our application for terminationof Supervised Release.
It is also w0llb noting that Mr. Cohen has indeed faced hardship because of homeconfinement. Mr. Cohen's elderly parents, one of whom is a Holocaust survivor, live in Florida,
and Mr. Cohen would relish being able to spend more meaningful time with them as they're aging
at home. Not being able to get to his parents quicldy if they need him weighs heavily on Mr.
Cohen and he is very aware that the time they have left together could be sho 11. While it is huethat Mr. Cohen has been afforded international travel, the onus of such travel is not a light one.
International travel requires that Mr. Cohen be detained by INS upon re-entry into the UnitedStates and be held up to an hour while INS check with DOJ and the Probation Office if he had theauthorization to travel internationally. This has proven to be a stressful and fiustrating experience,so much so that Mr. Cohen has turned down prestigious invitations to speak overseas, such as
highlighted in the enclosed invitation from The Oxford Union in Great B1itain.
Further, in sum and substan ce, Mr. Cohen has substantively complied with the spirit of theFirst Step Act. He successfull y completed ev idence-based recidivism reduction programming andwas dete,mined to be at a low risk for recidivating; thus, he is the definition of an Eligible Prisoner.
To this end, it warrants noting that he received numerous Certificates at FCI Otisville including
Doing Time with The Right Mind, Freedom from Drngs Program, Victim Impact Orientation
Workshop, and the Intervention 2 Program.

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 77 of 89

Michael Cohen has clearly demonstrated that he has been rehabilitated, and given the factthat he has committed no further offenses; has been a model inmate in prison, home confinement
and supervised release; has substantially cooperated with all government authorities; substantiallycomplied with the First Step Act program (receiving no credit on technical grounds) we
respectfully urge that Michael Cohen is the perfect candidate to be discharged from Supervised
Release which would communicate to the wider community that justice is tempered by mercy andis proportionally administered.

We appreciate Your Honor's consideration.
Respectfully submitted,

David M Schwartz, Esq.
Attorney for Michael Cohencc:

All counsel ofrecord (via ECF)

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 78 of 89

EXHIBITC

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 79 of 89

May 30, 2lX!J

VIA CM/ECF & EMAIL
Honorable Jesse M. Fumrnn
United States District J udge
Southern District of New York500 Pearl Street
New York, New York I 0007

Re:

United States v. Michael Cohen. l 8-Cr-602 and 18-Cr-850

Dear Judge Funnan:
Please be advised that the Law Offices ofGerstma11 Schwaitz L LP represents Mr. Michael
Cohen, for purposes of seeking your Honor's intervention in requesting that you discharge Mr.
Cohen from Supervised Release. On December 6, 2022, we made the same application to yourhonor in wl1ich you denied our application on December 19, 2022, without prejudice asp rematur We are now res ectfull l:JriAgi1r renewing: ihe-th is ;;ame-a lication. in which aiven!lli!.LMr. Cohen's tern1 of supervised release commenced on November 22, 2022 and he has now
served 8Yer enc approx imately two- thirds [check) vear-ofh.is three-yearreleasetenn .

Commented [DP1]: Note also made application in May

2023 - did judge make similar comments then?

Under 18 U.S.C. § 3583(e)(2), the court may, after considering the applicable factors in 18
U.S.C. § 3553(a), "modify, reduce, or enlarge the conditions of supervised release, at any tLrne
prior to the expiration or tennination of the term of supervised release, pursuant to the provisionsof the Federal Rules of Criminal Procedure relating to modification of probation and the provisions
applicable to the initial setting of the tenns and conditions of post-release supervision[.]"Obviously, given the profile of Mr. Cohen's prosecution, it is widely understood that Mr.
Cohen endeavored to pro'"lipe meaningful assistance to the government, at least as far as this term
is colloquially understood.1h here is no uestion that Mr. Cohen and his fa mil have aid the rice1
Mr. Cohen proved to be an invaluable governmental asset by assisting ;\uthorities in various investigations. Someof his notable contributions include:
I. Manhattan District A ttorney's Office: Three meetings while in prison and 12 in total. Mr. Cohen had no
obligation to meet with the t\'[anhattan District Attorney's OfficC', and he rC'cei\'ed no benefit from doing so.
2. New York Attorney General's Office: lliree meetings with Attorney General Letitia James both before andafter Mr. Cohen's sentence. He voluntarily provided the NY AG with several importan t documents.
3. Southern District ofNew York: Mr. Cohen met with the SONY aod Special Counsel's Office(SCO) of the
Department ofJustice before the ently of his plea in August 2018. Mr. Cohen participated in 7 voluntaty
interviews with both offices.
4. Special Counsel's Office: Mr. Cohen met with the SCO roughly 10 times regarding the Mueller probealbeit the inquiries falling outside conventional framework in which courts routinely engage in.

Commented [DP2]: Freshen up with# of times met w
DANY

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 80 of 89

for his transgressions. No daubt, it will alsa not bl) last 011 this court that hll Mr. Cohen has
taken tti+l-crim inal responsibi lity for his actions and has suffered tremendousl as a lresutd
We would respectfully venture further that Mr. Cohen presents no risk of recidivism andis a model candidate for a cessation of Supervisory Release. Indeed "[i]n the federal cotnis,
supervision is ... a way to monitor the activities and behavior of people released to the community
by the federal courts or paroling authorities.... [and] ... a n opportunity to help offenders reintegrate
into the community fo llowing a period of incarceration... T he desired outcomes of supervision are
the execution of the sentence and the protection of the community by reducing the r isk andrecurrence of crime and maximizing defendant success du1ing the period of supervision andbeyond. The goal in all cases is the successful completion of the tenn of supervision, during which
the defendant commits no new c rimes; is held accountable for victim, fami ly, commun ity, ando ther court-imposed responsibilities; and prepares for continued succes~ ,(i.e., refraining from
fu1iher crime) through improvements in his or her conduct and condition. '1-1._ _ _ __ _ _ __ _~It is clear that the goals of supervision have been ful fi lled. Mr. Cohen has exceeded all of
his court-imposed responsibi lities, is a loving husband and father, presents no risk of recurrence,and generally does not require the social services support to appropriately reintegrate into society.
In fact, continuing supervision is bis only remaining h.inderance in terms of being able toreassimilate into the community.
Mr. Cohen began serving his sentence of 36 months imprisonment and 3 years ofSupervised Release on or about May 6, 2019. Mr. Cohen's petition for a Writ of Habeas Corpus,
pursuant to 28 U.S.C. § 2241, was dismissed on April 20, 2021, fo r procedural reasons.
Specifically, the court articulated that his petition was denied because it was premature and notripe for review considering the F irst Step Act was not folly implemented. A lthough the petition
was rejected for tile noted reasons, we ask this court to reconsider it as a factor in Mr. Cohen'scurrent application for a d ischarge from Supervised Release. The instrumental arguments made infavor then should otherwise obtain now. 3
While Mr. Cohen was imprisoned at Otisville, he earned numerous certificates uponcompletion of many programs that would have otherwise counted towards First Step Act poi.nts.4
Because of the timing, Mr. Cohen was never credited with those points. These programs are just
5.

United States Congress: Specifica lly, M r. Cohen met· w ith the House Oversight Committee on th ree

occasions, the House Intelligence Committee on three occasions, tbe Senate Intelligence Committee on
three occasions, and individual ~]embers of Congress for countless hours preparing them for hearings.

httos://www.uscourls.gov/services-fonns!prohation-and-nret:rial-services/orobation-and-nretrial-services-

snnervision
3

Mr. Cohen's J-labe:1s Corpus Petition enunciated that he had a right to time cred its under the First Step Programand if not granted, he would s pend more t'ime in confinement than required under the law. This argument wasp remised as a denial of Mr. G-Ohent~Cohcn ' s fu ndame ntal due process rights. See Ex. A attached.
• See Ex. B attached.

Commented [DP3]: Would catalogue some of the wavs in
which you've suffered, including the threats and retaliatton

Commented [DP4]: Not sure what Ex B is, but you shouldhave a few in-district coun cases where j udge granted earlytenuination

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 81 of 89

one barometer indicative of his rehabilitation which fa vor his discharge from Supervised Release.
Fmmthermore, Mr. Co hen reached out lo Danin Howard, Regional Counsel of the Northeast
Region of the Federal Bureau of PI isons, more than 30 times regarding his First Step Act points
without receiving any correspo ndence.
Of course, as a m atter o f Jaw, Judge John Koeltl's detem1inatio n that Mr. Cohen's
previous applicatio n for a r.l,!,Ll-it of Habeas Co rpus was premature was spot on. However, over a
year has passed since, and with this in mind, we respectfully request that this court abridge Mr.
Cohen's tern,_ of Supervised R elease that sta;rted on November 22, 202 1.
We are asking that you consider the totality of the circumstances surrounding theremainder of Mr. Cohen's tefli+-lerm of Supervised Release. Once again, it bears repeating that
Mr. Cohen has fully acknowledged paid for his crimes, and his pa I tic ipalion w iU1 thegovenunent offices, as aitieu latedarticulated in Footnote I, has provided substantial andmeaningful assistance in other prosecutions and investigations. Given the volume and quality ofevidence that Mr. Cohen has provided to auU10rities, at great personal expense, we believe thatan early release would encourage similarly s ituated figures to take an active role in cooperatingin high profile investigations that are rife with consequence.
It warrants noting that, Mr. Cohen paid his fRS tax deficiency prior to his sentencing andall fines and penalties have been paid. He had an additional 12 meetings wi th the Manhattan
District Attorney's office and has committed no offenses while he was incarcerated o r whi le hehas been in home c onfinement. We also ask that you consider the extensive cooperation Mr.
Cohe n has given to prosecutors from various age ncies as well as other governmental authorities
for which he has never received any credit for. Justice would be served in our humble
assessment if you factor a ll the cooperatio n into this decision on our application for tenninationof Supervised Release.
H is also wo11h{}!-H, noting Lim! Mr. Cohe n has indeed faced hardship because of homeconli nemcnt. Mr. Cohen's elderly parents, one of who m is a Holocaust survivor, live in Florida,
and Mr. Cohen would re lish being able lo spend more meaningful time with them as they're aging
at home. Not being able to get to his parents quickly if they need him weig hs heavily on Mr.
Cohen and he is very aware that the time they have left togeU,er could be shon++. While it is truethat Mr. Cohen has been afforded interm,Lional travel , the onus of such travel is not a light o ne.
international travel requires that Mr. Cohen be detai ned by INS upon re-entry into the UnitedStates and be held up lo an hour while INS check with DOJ mid the Probation Office if he had theautho rization to travel internatio nally. This has proven lo be a stressfu l and frustrating experience,so much so that Mr. Cohen has turned down prestigious invitations to speak overseas, such as
highlighted in the enclosed invitation fro m The Oxford Union in Great Britain .
Further, in sum and substance, Mr. Cohen has substantively complied with the spirit of theFirst Step Act. He successfully completed evidence-based recidivis m reduction programming andwas de1e,m i11eEldeter111 ined to be at a low risk fo r recidivating; thus. he is the definition of an
Eligible Prisoner. To this end, it warrants noting that he received num erous Certificates at FCI
Otisville inc luding Doing T ime with The Right Mind, Freedom from Drugs Program, Vic tim
Impact Orientatio n Workshop, and the Intervention 2 Program.

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 82 of 89

Michael Cohen has clearly demonstrated that he has been rehabilitated, and given the factthat he has committed no further offenses; has been a model inmate in prison, home confinement
and supervised release; has substantially cooperated with all government authorities; substantiallycomplied with the First Step Act program (receiving no credit on technical grounds) we
respectfuUy urge that Michael Cohen is the perfect candidate to be discharged from Supervised
Release which would communicate to the wider community that justice is tempered by mercy andis proportionally administered.

We appreciate Your Honor's consideration.
Respectfully submitted,

David M Schwartz, Esq.
Attorney for Michael Cohencc:

All counsel eft:eeeffipf recol.'.Q(viaECF)Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 83 of 89

EXHIBITD

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 84 of 89•

Ol

Michael >Sun, Nov 12 at 2:07 PM

Early
Terminationof Release of
Term05-30-23 ( ...
WordDocument • 69

KB
Sent to me from
Danya. Thoughts
about dredging it up,
strengthening it a bit
and then just sending
it off?
' All good but it's
missing the change incircumstances which
is your testimony inG

D l iMessage~· ··· - ~Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 85 of 89

EXHIBITE

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 86 of 89
Jacquie Tellez
From:
Sent:
To:
Subject:

Michael Cohen
Saturday, November 25, 2023 10:19 AM
Jacquie Tellez
Fwd:[EXTERNAL SENDER]

Yours,
Michael D. Cohen---------- Forwarded messa e --------From: Laura Cohen
Date: Sat, Nov 25, 2023 at 7:39 AM
Subject:
To: <dschwartz@gothamgr.com>

Here is a recent example of a 2nd Circuit Court decision granting early termination of supervised
release: we should use this one instead of the 7th circuit
United States v. Figueroa-Flores, 64 F.4th 223 (2d Cir. 2022)
This case involved a defendant who had been convicted of possession with intent to distributecocaine. He was sentenced to 60 months in prison, followed by five years of supervised release. After
serving two years of his supervised release term , the defendant filed a motion for early termination.
The district co urt granted the motion, find ing that the defendant had complied with all of the conditionsof his supervised release, had no histo ry of crim inal convictions or arrests, and had made significant
progress in rehab ilitating himself.
The Second Circuit affirmed the district court's decision. The court found that the district court had notabused its discretion in granting early termination, and that the defendant had met the burden of
demonstrating that he was no longer a danger to the community.
Factors that courts consider in granting early termination of supervised release
The factors that courts consider in granting early termination of supervised release are set forth in 18
U.S.C. § 3553(a). These factors include:•

The nature and seriousness of the offense
1Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 87 of 89•

The defendant's history of criminal convictions or arrests•

The defendant's compliance with the conditions of supervised release•

The defendant's progress toward rehabilitation•

The danger that the defendant poses to the community

In addition to these factors, courts may also consider other factors, such as the defendant's age,
health, and family circumstances.

2

Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 88 of 89
Jacqueline Tellez
From:

Sent:
To:

Subject:

Michael Cohen
Saturday, November 25, 2023 10:19 AM
Jacquie Tellez
Fwd:[EXTERNAL SENDER]

Yours,
Micha el D. Cohen

From: Laura Cohen
Date: Sat, Nov 25, 2023 at 7:42 AM
Subject:
To: <dschwartz@gotham gr.com>

here is another example of a 2nd Circuit Court decision granting early termination of supervised
release for a tax-related offense: almost identical fact pattern to mine of 36/36
United States v. Amato , 2022 WL 1669877 (2d Cir. May 10, 2022)
This case involved a defendant who had been convicted of tax evasion. He was sentenced to 36
months in prison, followed by three years of supervised release. After serving two years of his
supervised release term, the defendant filed a motion for early termination . The district court granted
the motion, finding that the defendant had complied with all of the conditions of his supervised
release, had paid his full tax liability, and had made significant progress in rehabilitating himself.
The Second Circuit affirmed the district court's decision. The court found that the district court had notabused its discretion in granting early termination, and that the defendant had met the burden of
demonstrating that he was no longer a danger to the community.

1Case 1:18-cr-00602-JMF Document 103 Filed 12/29/23 Page 89 of 89
Jacqueline Tellez
From:

Sent:
To:

Subject:

Michael Cohen
Saturday, November 25, 2023 10:19 AM
Jacquie Tellez
Fwd:[EXTERNAL SENDER]

Yours,
Michael D. Cohen

From: Laura Cohen
Date: Sat, Nov 25, 2023 at 7:40 AM
Subject:
To: <dschwartz@gothamgr.com >here is another example of a 2nd Circuit Court decision granting early termination of supervised
release:United States v. Ortiz (No. 21-3391 ), 2022 WL 4424741 (2d Cir. Oct. 11, 2022)
This case involved a defendant who had been convicted of conspiracy to distribute cocaine base. He
was sentenced to 120 months in prison, followed by five years of supervised release. After serving
two years of his supervised release term, the defendant filed a motion for early termination. The
district court granted the motion, finding that the defendant had complied with all of the conditions of
his supervised release, had no history of criminal convictions or arrests, and had made significant
progress in rehabilitating himself.
The Second Circuit affirmed th e district court's decision. The cou rt found that the district court had notabused its discretion in granting early termination, and that the defendant had met the burden of
demonstrating that he was no longer a danger to the community.

1