1

UNITED STATES OF AMERICA v. PAUL NICOLETTI

 1 UNITED STATES DISTRICT COURT

 2 FOR THE EASTERN DISTRICT OF MICHIGAN

 3 SOUTHERN DIVISION

 4

 5 UNITED STATES OF AMERICA, 

 6 Plaintiff, Case No. 15-20382-1

 7 -vs-

 8 Detroit, Michigan

 9 PAUL NICOLETTI, June 28, 2018

10 Defendant. 

11 ------------------------------/

12

13 TRANSCRIPT OF MOTION TO WITHDRAW and REQUEST FOR NEW COUNSEL

14 BEFORE THE HONORABLE VICTORIA A. ROBERTS

15 UNITED STATES DISTRICT COURT JUDGE

16

17 APPEARANCES: 

18 For the Government: Craig A. Weier 

U.S. Attorney's Office 

19 211 W. Fort Street, Suite 2001 

Detroit, MI 48226 

20

21 For the Defendant: Michael J. Harrison 

Harrison Law 

22 40950 Woodward 

Bloomfield Hills, MI 48304 

23

24 Proceedings taken by mechanical stenography, transcript 

produced by computer-aided transcription

25

JANICE COLEMAN, CSR 1095, RPR

OFFICIAL FEDERAL COURT REPORTER

(313) 234-2611

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 1 Detroit, Michigan

 2 Thursday, June 28, 2018

 3 (At about 10:31 a.m.) 

 4 - - -

 5 (Call to Order of the Court)

 6 THE CLERK OF THE COURT: Calling the case of United 

 7 States of America versus Paul Nicoletti, 15-20382. Counsel, 

 8 please state your appearances.

 9 MR. WEIER: Your Honor, good morning. Craig Weier on 

10 behalf of the United States.

11 THE COURT: Good morning.

12 MR. HARRISON: Good morning, Your Honor. Michael 

13 Harrison on behalf of Paul Nicoletti.

14 THE COURT: Good morning. 

15 MR. NICOLETTI: Good morning, Your Honor. Paul 

16 Nicoletti on behalf of myself.

17 THE COURT: Everyone, you can take your seats. This 

18 matter is before the Court on a Motion to Withdraw and request 

19 that new counsel be appointed filed by Mr. Harrison. I have a 

20 Government response to that Motion, and I have a response from 

21 Mr. Nicoletti as well. Mr. Harrison, do you wish to add to 

22 your Motion.

23 MR. HARRISON: No, Your Honor. I would stand by my 

24 motion. If the Court has any questions, I'll be happy to 

25 respond to them of course.

JANICE COLEMAN, CSR 1095, RPR

OFFICIAL FEDERAL COURT REPORTER

(313) 234-2611

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 1 THE COURT: All right. Thank you. And Mr. Weier?

 2 MR. WEIER: Your Honor, I have nothing to add to the 

 3 response.

 4 THE COURT: And Mr. Nicoletti?

 5 MR. NICOLETTI: Yes, Your Honor. I would like to 

 6 respond. 

 7 THE COURT: Why don't you just stay at counsel table 

 8 and use the microphone because if you stand here you'll be 

 9 blocking Mr. Weier. Thank you. 

10 MR. NICOLETTI: Your Honor, the only issue that I want 

11 to add to my response is that based upon a Motion to Strike 

12 filed by the Assistant Prosecuting Attorney, he indicates that 

13 there was not an agreement to move the motion cutoff date.

14 THE COURT: I'm sorry. You filed -- you have filed a 

15 couple of motions since Mr. Harrison filed his motion, correct?

16 MR. NICOLETTI: Yes, Your Honor.

17 THE COURT: And that's what you're about to address 

18 now?

19 MR. NICOLETTI: No.

20 THE COURT: I thought you mentioned Motion to Strike. 

21 There was no motion to strike your response to this motion.

22 MR. NICOLETTI: No. No, there was not, Your Honor, 

23 but there is confusion as far as what the motion cutoff date is 

24 and the only person that has that knowledge is Mr. Harrison and 

25 Mr. Weier because Mr. Harrison had always informed me that the 

JANICE COLEMAN, CSR 1095, RPR

OFFICIAL FEDERAL COURT REPORTER

(313) 234-2611

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 1 motion cutoff date had been changed to June 11th and that it 

 2 was informal pursuant to a call to the Court that was placed on 

 3 I think February 20th, 2018. So then Mr. Weier turns around 

 4 and says that the motions were filed late, which is not the 

 5 issue as far as I know and I do have proof that there was an 

 6 agreement, at least Mr. Harrison believed that the motion 

 7 cutoff date was June 11th and I'd be happy to present that to 

 8 the Court. So I think Mr. Weier is being disingenuous when he 

 9 says that my motion -- the motions that have been stricken were 

10 filed late because he knows that there was an agreement between 

11 the two of them to informally adjourn the motion cutoff date.

12 THE COURT: Well again, Mr. Nicoletti, the Motion to 

13 Withdraw here is based on a couple of things. Mr. Harrison 

14 says that you want him to put forth a strategy that he doesn't 

15 believe he can do, and it's based on medical issues that he 

16 says are hampering his ability to represent you. So do you 

17 want to address either one of those two things?

18 MR. NICOLETTI: Yes, Your Honor. I attached -- when I 

19 filed my response, I attached an email from Mr. Harrison where 

20 he indicates that his request for adjournment will be solely 

21 based on his medical issues. I have never asked for 

22 adjournment nor am I asking for an adjournment, and it looks 

23 bad -- 

24 THE COURT: (Interjecting) I didn't see any emails 

25 attached to your response to the motion. I'm sorry.

JANICE COLEMAN, CSR 1095, RPR

OFFICIAL FEDERAL COURT REPORTER

(313) 234-2611

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 1 MR. NICOLETTI: Your Honor, I don't want to waste the 

 2 Court's time by trying to find the email. I don't think that 

 3 Mr. Harrison will dispute the fact that he sent it. I know it 

 4 exists. It wasn't one of the emails that I printed for today's 

 5 purposes, but I'd be happy to -- as an officer of the court, I 

 6 can represent that that's exactly what he said in his email and 

 7 I'd be happy to supplement the record with a copy of the email. 

 8 I just don't want to waste the Court's time. I don't think 

 9 he'll deny that he indicated that.

10 THE COURT: Most importantly, Mr. Nicoletti, is the 

11 representation here that things have broken down between you 

12 and Mr. Harrison, and Mr. Harrison believes that he cannot 

13 continue to represent you and his health issues. So I don't 

14 know that you can say much to dispute his health issues. What 

15 about that the relationship has broken down such that he would 

16 not be able to represent you?

17 MR. NICOLETTI: Well, Your Honor, with regard to Mr. 

18 Harrison's health issues, he's always claimed that he has 

19 health issues. When I questioned him about health issues, he 

20 refused to answer my questions. He indicated that the Court 

21 has his medical records. I have never seen his medical records 

22 nor do I think I'm entitled to them, but he represented to me 

23 that the Court has his medical records and the Court knows that 

24 he has medical issues. Well, if he knew that the Court -- if 

25 he knew he had medical issues a year ago, why did he accept 

JANICE COLEMAN, CSR 1095, RPR

OFFICIAL FEDERAL COURT REPORTER

(313) 234-2611

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 1 appointment of the case? Why did he continue on? Why did he 

 2 wait until two weeks before trial to file a Motion to Withdraw? 

 3 Why did he not serve the subpoenas that he should have served 

 4 back in February? Why did somebody not call me and say look, 

 5 Michael's going to disappear for 11 days or back in December he 

 6 disappeared for close to three months. Nobody even gave me the 

 7 courtesy of a phone call or an email indicating that Michael 

 8 had disappeared. So his medical condition I can't respond to 

 9 because I know nothing about it. 

10 THE COURT: That's what I said, that you probably 

11 cannot address the health issues. What about his 

12 representation that there has been a breakdown in your 

13 relationship with him such that it would not be to your benefit 

14 or his for him to continue as your lawyer?

15 MR. NICOLETTI: Well, Your Honor, based upon the issue 

16 that has now been raised by Mr. Weier that the motions weren't 

17 filed timely, that deals with the issue of malpractice. So up 

18 until the time Mr. Weier raised the issue that the motions 

19 weren't filed timely and denied that there's an agreement to 

20 extend that timeframe, there wasn't an issue, but now I think 

21 that there is an issue because Mr. Weier is basically accusing 

22 Mr. Harrison of malpractice because he had the emails. He had 

23 everything ready to file and then they weren't filed by the 

24 20th because they had reached -- they'd called the Court and 

25 agreed to an informal extension.

JANICE COLEMAN, CSR 1095, RPR

OFFICIAL FEDERAL COURT REPORTER

(313) 234-2611

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 1 THE COURT: I'm not sure that there's an accusation of 

 2 malpractice here; maybe Mr. Weier wants to address that. I 

 3 think he was pointing out that there was a motion cutoff date. 

 4 Do you have anything more that you want to put on the 

 5 record?

 6 MR. NICOLETTI: Yes, Your Honor. I would like to 

 7 present the Court with evidence that the motion cutoff date was 

 8 in fact --

 9 THE COURT: (Interjecting) Mr. Nicoletti, you're 

10 getting ahead of me. You're getting ahead of what I want to 

11 address here. I set this hearing to address Mr. Harrison's 

12 motion to withdraw for two reasons; medical issues and 

13 breakdown in relationship between the two of you. Do you have 

14 anything more to say on that?

15 MR. NICOLETTI: No, Your Honor. 

16 THE COURT: Thank you. Mr. Weier, do you have 

17 anything you want to say? 

18 MR. WEIER: Not on the issues that the Court raised, 

19 Your Honor.

20 THE COURT: The Court is going to grant Mr. Harrison's 

21 Motion. It appears from the papers that have been filed and 

22 what has been placed on this record today that Mr. Nicoletti 

23 and Mr. Harrison cannot continue to work together and 

24 therefore, it would be in Mr. Nicoletti's best interest that 

25 Mr. Harrison not continue to represent him. So the Motion is 

JANICE COLEMAN, CSR 1095, RPR

OFFICIAL FEDERAL COURT REPORTER

(313) 234-2611

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 1 granted.

 2 MR. HARRISON: Thank you, Your Honor. Shall I present 

 3 an Order? 

 4 THE COURT: No, we will do an Order. I'll enter an 

 5 Order. 

 6 MR. HARRISON: Thank you, Your Honor.

 7 THE COURT: Thank you very much. Since that motion 

 8 was filed by Mr. Harrison, Mr. Nicoletti, you filed your own 

 9 motions. I believe the Court struck those motions because you 

10 were represented by Counsel at the time the motions were filed, 

11 and so that gets us to a couple of things that I need to 

12 discuss here which is the first one, Mr. Nicoletti, do you 

13 intend to represent yourself or do you want new counsel?

14 MR. NICOLETTI: New counsel, Your Honor.

15 THE COURT: Was Mr. Harrison appointed counsel?

16 MR. NICOLETTI: He was.

17 THE COURT: And so you need appointed counsel again?

18 MR. NICOLETTI: Yes.

19 THE COURT: All right. Carol will take the steps to 

20 notify the Federal Defender's Office and to try to get counsel 

21 appointed to represent you. 

22 And if it is your desire, Mr. Nicoletti, to have new 

23 counsel and I think you're saying to the Court then that you 

24 don't intend to represent yourself, when new counsel is 

25 appointed in the case you will have the opportunity to discuss 

JANICE COLEMAN, CSR 1095, RPR

OFFICIAL FEDERAL COURT REPORTER

(313) 234-2611

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 1 with him or her the motions that have been struck and any 

 2 strategy you wish to pursue and the case is going to be delayed 

 3 under the Speedy Trial Act because of this need for new counsel 

 4 to file an appearance. So is there anything more, Mr. 

 5 Nicoletti? 

 6 MR. WEIER: Nothing on behalf of the United States, 

 7 Your Honor.

 8 THE COURT: Mr. Nicoletti, do you have anything more?

 9 MR. NICOLETTI: No, Your Honor. If the motions are 

10 stricken, I would just speak to those.

11 THE COURT: Okay then, I think we're done. I'm sure 

12 you'll be notified in the next day or two, Mr. Nicoletti, who 

13 your new lawyer is and once that happens, we will send out a 

14 Scheduling Order. We'll have to take into account whatever 

15 time your new attorney will need to get up to speed in the case 

16 and we'll set new dates. 

17 MR. WEIER: Thank you, Your Honor.

18 MR. NICOLETTI: Your Honor, would the Court by any 

19 chance entertain my motion for return of the passport that I 

20 believe was unopposed by the U.S. Attorney's Office?

21 THE COURT: Mr. Weier, do you have anything to say on 

22 the passport?

23 MR. WEIER: That motion has been stricken by the 

24 Court, Your Honor, so -- and we do oppose that motion.

25 THE COURT: Okay. I understand that I struck it. So 

JANICE COLEMAN, CSR 1095, RPR

OFFICIAL FEDERAL COURT REPORTER

(313) 234-2611

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 1 it may be re-filed. Mr. Nicoletti, what are your reasons for 

 2 wanting your passport? Your mother is ill I understand, and 

 3 you have family outside of the United States? 

 4 MR. NICOLETTI: Yes. 

 5 THE COURT: And is there a need for you to travel 

 6 outside of the United States right now?

 7 MR. NICOLETTI: There is, Your Honor.

 8 THE COURT: What is that need?

 9 MR. NICOLETTI: So my mother can keep in touch with 

10 family and so that I can keep in touch with family.

11 THE COURT: And there isn't anyone else to provide 

12 assistance to your mother?

13 MR. NICOLETTI: Actually there is not. My mother is 

14 85 years old and I'm her only source of travel. I'm the only 

15 person that she will travel with. She won't travel with anyone 

16 else.

17 THE COURT: Well, Mr. Weier is correct. The motion 

18 has been struck. You'll get new counsel very shortly and 

19 perhaps that's a motion that will get filed and the Government 

20 will be an able to respond to it on a substantive basis. So we 

21 are done for today. Thank you. 

22 MR. NICOLETTI: Your Honor, can I just inquire of the 

23 Court? What is the basis for striking the motion that Mr. 

24 Weier filed? He didn't have any case law. He didn't have any 

25 court rules and what's the authority for striking my motion and 

JANICE COLEMAN, CSR 1095, RPR

OFFICIAL FEDERAL COURT REPORTER

(313) 234-2611

Case 2:15-cr-20382-VAR-MKM ECF No. 103, PageID.1058 Filed 11/14/18 Page 10 of 13
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 1 preventing me from filing motions until someone else is 

 2 appointed because I don't know when that's going to be?

 3 THE COURT: It's going to be within the next day or 

 4 two. That's how rapidly the Federal Defender's Office works.

 5 MR. NICOLETTI: And the authority --

 6 MR. WEIER: (Interjecting) If I may, Your Honor? Just 

 7 to educate Mr. Nicoletti. Federal Rule of Criminal Procedure 

 8 12(c) gives the Court the authority to set motion cutoff dates; 

 9 it has done so and the Court has relied on the motion cutoff 

10 date in its motion to strike the motions. Whether the cutoff 

11 date was February 20th or June 11th, these motions were still 

12 late. The Court had authority to set that date. That's the 

13 authority.

14 THE COURT: Beyond that, however, Mr. Nicoletti, this 

15 Court routinely strikes motions that are filed by Defendants -- 

16 by any party who's represented by a lawyer. You are acting 

17 through your counsel. Your counsel is the one who has the 

18 authorities -- the authority to file papers with the Court and 

19 so as I said, you were represented by counsel and the Court 

20 does what it always does in that instance which is to strike 

21 motions filed by a represented party.

22 MR. NICOLETTI: So the Court will issue a Scheduling 

23 Order that includes the new motion cutoff date?

24 THE COURT: I can't say that. You will be acting 

25 through your new lawyer who will bring to the attention 

JANICE COLEMAN, CSR 1095, RPR

OFFICIAL FEDERAL COURT REPORTER

(313) 234-2611

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 1 whatever he or she believes is necessary to be before the Court 

 2 and that will be after consultation with you, so I can't say 

 3 what I'm going to be doing, but I will be responding to matters 

 4 that are brought before me through counsel.

 5 MR. NICOLETTI: It's just that you indicated you're 

 6 going to issue a Scheduling Order and I wondered if that would 

 7 be included in that Scheduling Order.

 8 THE COURT: I can't say what will be included in that 

 9 Scheduling Order. After you have new counsel, we will have a 

10 status conference and the Court will discuss issues.

11 MR. NICOLETTI: Very well, Your Honor.

12 THE COURT: Thank you.

13 MR. WEIER: Thank you.

14 THE COURT: We're adjourned.

15 (Proceedings adjourned at about 10:50 a.m.) 

16 - - -

17 COURT REPORTER'S CERTIFICATION

18

19 STATE OF MICHIGAN)

20 ) SS. 

21 COUNTY OF WAYNE )

22 I, Janice Coleman, Federal Official Court Reporter, in and 

23 for the United States District Court for the Eastern District 

24 of Michigan, do hereby certify that pursuant to Section 753, 

25 Title 28, United States Code, that the foregoing is a true and 

JANICE COLEMAN, CSR 1095, RPR

OFFICIAL FEDERAL COURT REPORTER

(313) 234-2611

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 1 correct transcript of the stenographically reported proceedings 

 2 held in this matter and that the transcript page format is in 

 3 conformance with the regulations of the Judicial Conference of 

 4 the United States. 

 5

 6 /S/ JANICE COLEMAN

 7 JANICE COLEMAN, CSR NO. 1095, RPR

 8 FEDERAL OFFICIAL COURT REPORTER

 9

10 DATED: November 1, 2018

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JANICE COLEMAN, CSR 1095, RPR

OFFICIAL FEDERAL COURT REPORTER

(313) 234-2611

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