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Proceedings held before the Honorable William M. Skretny, Part IV, U.S. Courthouse, 68 Court Street, Buffalo, New York on February 26, 2010. APPEARANCES: MARY CATHERINE BAUMGARTEN, Assistant United States Attorney, Appearing for the United States. SHANE BUCZEK, Appearing Pro Se. BRIAN COMERFORD, Assistant Federal Public Defender, Appearing as Standby Counsel for Defendant. Michelle L. McLaughlin, RPR, Official Reporter, U.S.D.C. W.D.N.Y. (716)332-3560
2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CLERK: Criminal case 09-121, criminal
case 08-54, criminal case 09-141, United States of America versus Shane Buczek. THE COURT: Okay. I guess this is a
status with respect to update on where we are on the case set to go to trial next week, and/or the other related cases. You want to, from the
government's standpoint, Miss Baumgarten, tell me where you think we are. MS. BAUMGARTEN: Judge, I have been
meeting and discussing the potential pretrial disposition as to all of the three matters that are pending against the defendant. I've been working
through Mr. Comerford, and we also did have a meeting with Mr. Comerford, the case agent, myself, and Mr. Buczek and his family last night. my understanding that there may have been a disposition reached. I'm probably not the best An offer It was
person to advise the Court at this point.
has been tended, your Honor, that would dispose of all three matters. THE COURT: Thank you. And then,
Mr. Comerford, you acknowledge receipt of the government's offer? MR. BUCZEK: Yes, your Honor.
3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point. THE COURT: All right. And, Mr. Buczek,
you've been in discussion with the government and Mr. Comerford and your parents in this regard? THE DEFENDANT: Judge, are you referring
to the legal entity or the living matter? THE COURT: I'm referring to Shane Buczek. All right, so that will be
THE DEFENDANT: the living man? THE COURT:
You appear to be that, yes. Okay. Thank you. We have
had discussions, and I mentioned something about my idea of this whole case, and I -- I really, you know, without -- to keep it real short, there's been no proper notice. I see absolutely no
controversy in all three of these cases. Now as the paramount security interest holder and holding all property and collateral, registered and unregistered, which I made it clear last time that all of this can be referred back to Broward County, everything is there. THE COURT: No, Mr. Buczek, you're off
Where are we as far as what you're going to
do, because -- I mean, I know that's your position, but I don't think that addresses my question in terms of the offer and whether you're going to
4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 accept it. long time. You have repeated that position for a But it's time to either address whether That's
we're going to trial on Monday or not. where we're at. THE DEFENDANT: Fine.
I just, you know, I I see no evidence And I think
see no evidence of controversy.
that I'm a, you know, a legal entity. you understand that.
And I know that back in the
transcripts, as I was reading -- all my transcripts are here today, and I was reading what you were trying to say to me about that, it's clear that the United States has the authority, and I don't agree to that. And it's clear that I'm the defendant,
and I don't agree to that, because I'm not the defendant. But I understand the Court's going to
go forward, they're going to set it for trial, and the public -- or the public defender's office and the U.S. attorney's office is already saying I'm guilty. already. long time. THE COURT: realize -THE DEFENDANT: THE COURT: And I -I'll Okay. Well, you have to As a living, breathing man I'm guilty So it's either this or go to jail for a
No, let me finish.
5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 extend the courtesy to you as well. Nobody can say
that you are guilty, because the indictment is not evidence, and it is an instrument that's been returned to apprise you of what the charges are against you. innocent. If you go to trial, you're presumed
The government must prove you guilty That's what we're
beyond a reasonable doubt. talking about here. instrument.
The document is a charging
You are named in the capacity that you
appear on the face of the indictment, and you will face that charge. Now, the reason I, in part, tell
you that is because ultimately the sentencing decision, in the event that you are either convicted after trial or if you enter a plea of guilty to anything that's acceptable, you get the benefit of my sentencing. I can't give you a
commitment at this point in time, but I am the sentencing authority. And that comes into play
only, one, after a conviction or after a plea of guilty is entered and I accept it. But there will
be a trial, I mean, irrespective of your position now if you say that you're not willing to accept the government's offer. So what's going to happen And then I
is there will be a trial next week.
will issue a decision on all of the matters that
6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a trial. a burden. are still pending. You will have the benefit of
that, and then we will be ready to start the trial. But that's, in essence, your decision to make. either go to trial or you don't. THE DEFENDANT: Well, Judge, you know, You
I -- I don't consent to the trial, and I waive all my benefits and privileges. several times already. THE COURT: Okay. Now, see, you don't consent to They have That's the I think I waived that
They are charging you.
You are presumed innocent.
full extent of it. consent.
It does not involve your
And if you have appeal issues, so be it.
That's at the next stage, but as far as trial is concerned, you don't get the opportunity to consent to a trial or not. go next week. You are charged, and you will
So, it's not an issue of consent at
least at this stage. If you want to plead guilty to whatever the offer is and appeal after that, I suppose you can do that. If you are found guilty, you can appeal. But
If you are acquitted, well, then, you move on. you know the system. that, right? THE DEFENDANT: There's no question about
Well, Judge, you know, I
7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have never clearly had any of my paperwork answered. all that. And I know paperwork is all hearsay and Sometimes you don't even need paperwork,
because you're looking for my testimony I think, and on the record, on and for the record, I'm not the defendant, because I looked up the definitions and all that. And there's been no proper notice,
and again, I urge the Court that there's no controversy. plea deal. I see no controversy. I read the
And they're saying it is, and I say And I can, you know, sit
well, I don't see it.
here and talk about all these issues, but we're not going to do that. I just don't see no controversy.
And for me to sign a plea deal with no original accusatory instrument, original, not a piece of paper, hearsay evidence, I'd probably be committing a crime. THE COURT: No, you're not, Mr. Buczek.
The document is a filed record of the court. THE DEFENDANT: THE COURT: MR. BUCZEK: THE COURT: All right.
And I suppose if -I just -Go ahead. I just need to come to a Trust me, I don't want to
THE DEFENDANT: conclusion of this case.
8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be here. I don't want to be wasting your time. I
want Brian done with me.
I want to conclude this.
But, I also want to follow the rule of law, and that is what I -- the stuff and all the information I've read is I know in my mind that I'm not the defendant. controversy. notice. I know in my mind there's no I know in my mind there's no proper Why do I got an
What am I doing here?
ankle bracelet around for two years now and the ratification of commencement hasn't been met. That's not an argument. I'm just trying to follow
what is in front of me, that's all. THE COURT: See, if you didn't have You do have notice And there is an
notice, you couldn't be here. and that's why you're here.
instrument that charges you with committing a crime, and that's what you in effect responded to by being here. So, that's all -- the fact that you
say you haven't had notice, that's not accurate, otherwise how do you explain the fact that you are here? THE DEFENDANT: duress, right. THE COURT: No. Well -If I couldn't come here, Right. Under threat and
9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what's going to happen? They're going to ransack
my parents' house, bring me in here, there's been no injured party, there's no verified complaint. It's not an argument. I'm just putting things on I don't want to
and for the record, that's all. waste your time.
But, you know, I'm reading things I know Title 18 is not in
and looking at the laws. the federal register. we're here. THE COURT:
I know all that stuff, but
That's not right.
Section 1542 charges you -- that's the statute that you are charged with violating, so, plain and simple, and the instrument is a charging instrument, and you are presumed innocent. So if
you choose to put the government to the burden of proving you guilty, if it can, with its evidence, that is your decision. But you are here. have a plea offer. And that will be respected. You do
There is an instrument.
It is the system of this Court,
and as I told you, what applies here are the rules of evidence, and the rules of criminal procedure. Whether you agree with them or not, they are the controlling rules of this forum, and you are subject to the rules of this forum. decision. You may not agree. So, it is your
In your own mind,
10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you don't think you have to consent, but the fact of the matter is the case will proceed forward if you don't accept the plea offer. Remember, I'm the one that will be sentencing you on either the plea or after conviction if, in fact, you are convicted. remains to be seen. And you may not be. That
But remember that stuff that
you're referring to as a living, breathing being, et cetera, et cetera, that's not admissible at trial, as the rulings have indicated, except on the issue of intent here. THE DEFENDANT: THE COURT: So -Well --
But that is the rule, and
believe me, I mean, I've given your case a lot of thought. THE DEFENDANT: THE COURT: I know. I know.
You have to -- I mean, you
are -- not that you have to do, really, anything other than be here and choose to defend or not, come next week. will be. That's really what your choice
But I will apply the rules of evidence, I'll
remember that, and you can make your record. give you that opportunity, but remember the consequences.
You do face possible conviction.
the other hand, you face possible acquittal, and
11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you know the system, so -- you may not agree with it, but you know it. THE DEFENDANT: I do know about the
original note and a verified affidavit of complaint, the real party of interest, and we never really had a discussion, which I don't want to get too deep into that, but it's right there in black and white. THE COURT: No, it's not, Mr. Buczek. And
your black and white is different from the rules of what's black and white as far as what we have to do next week, and by we, I mean, I preside, you are the defendant. The government will be prosecuting You are on notice And
you under the notice document.
of what crime you are accused of committing. that will take place.
And the jury will have to
decide it, and their verdict will have to be unanimous, and all the same rules that apply to every living human being that is accused of a crime in this country will be applied in this particular case. No exceptions. So, you know, it's a serious
decision. THE DEFENDANT: THE COURT: It is.
Give it a lot of thought.
Because, again, I remind you, you know, what I do
12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 by way of sentencing is, to the best of my ability, fair, just, reasonable, sufficient, but not greater than necessary. It takes into account all of the
factors, mitigating as well as aggravating, but it will be a fair sentence regardless of whether you plead or if in the event you are convicted after trial. The difference comes in I think in terms of
your exposure, and I assume that you face less under the terms of the plea agreement, than you might if you go to trial on three different cases. And, of course, that's your decision to make. I
will proceed as absolutely fairly to both sides as I can. But you have to think about what you are If you
exposed to ultimately if you go to trial.
are convicted, you certainly have a right to appeal. You should weigh what your rights are as I don't want to But, you
far as appeal is concerned. repeat.
I know where you're coming from.
know, give it -- give it serious thought, if you haven't already. Does the plea agreement require
that there not be an appeal? MS. BAUMGARTEN: There is that -- a It is the
provision is included, your Honor.
standard waiver of the rights of appeal. THE COURT: With respect to the guideline
13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 range applicability. MS. BAUMGARTEN: Correct, your Honor, as
the Court has noted, without addressing the specifics of the plea agreement, not only does it dispose of the three matters that are currently pending, but also it's substantially less exposure. Having said that, your Honor, I realize I'm not the defendant's attorney, I cannot give him legal advice, but one of the issues that did arise in a limited fashion was the defendant's ability to speak to the Court at sentencing and raise whatever issues he might have with respect to the sentence the Court might impose. So to the extent that
there might be limitations on the theories or arguments made before a jury based on this Court's ruling at a trial, that he would have an opportunity to address the Court with respect to those. THE COURT: Baumgarten. Okay. Thank you, Miss
If you understand I think what the
prosecutor is saying is that in the event that this matter proceeds to sentencing, I'll give you the full opportunity to address me with what you think are all of the relevant considerations before I impose final sentence, and that's, from my mindset
14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 standpoint, the best way to assure that the disposition in this case will be fair to you if you go pursuant to a plea agreement. If there's a conviction and sentencing results, I will give you the opportunity, certainly, to make your case, but your exposure becomes greater in all likelihood. So, you know, you have the opportunity
to give me all of the information that you think is mitigating. But there has to be a disposition And
first, either by jury verdict or by a plea.
one way or another we're going to get one of those because we start trial next week. THE DEFENDANT: plea, Judge. I never took a not guilty
And, you know, I think I put
something in yesterday that Judge Schroeder put a not guilty plea in for me. mistake in yesterday. to see it? And I put a notice of
Did you have an opportunity
I don't want to pull it out and read it If you want me to, I have it
all into the record. right here. THE COURT:
Well -What I'm trying to get to It's called Notice of
is the jurisdictional issue.
Mistake with Declaration in Support Notice of Election of a Choice in Action and Conversion on
15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 All Liability. It's only two pages long. I don't
want to take up the Court's time, but I'm willing to read the documents into the record. February 25th, 2010. It's filed
And all I'm trying to do is,
on and for the record, I have never officially taken a not guilty plea. You're probably saying
why haven't you taken a plea, right? THE COURT: Have you explored Alfred? I don't believe that
would be a satisfactory disposition, your Honor. Truly with the auspices of Mr. Comerford, his advocacy on it, I believe, your Honor, that the best possible offer has been made to the defendant to resolve all three matters. THE COURT: Okay. Well, you know, I don't
know what else to tell you at this point, Mr. Buczek. You know, you have the offer. If you You
want to give it some more time, that's fine.
know, all indicators are that the proper procedures and terms of proceeding on the indictment have been followed to date. The trial will take place
starting next week, so, you know, you should get your act together and do your preparation. the assistance of backup counsel, if that is helpful to you, but again, keep in mind that the Rely on
16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 plea? MS. BAUMGARTEN: It's been extended three proper rules will be applied in this case. MS. BAUMGARTEN: open-ended. So --
Judge, the offer is not
I did provide notice of that to the
defense, because of the nature of what's been included in the government's necessity if -- we do have final preparations, including a number of witnesses and things, so this really is -- has been conveyed to the defense, your Honor. THE COURT: trial, right? I know you're ready to go to
I mean, you're doing the best you
can to get a fair resolve here. MS. BAUMGARTEN: Absolutely, Judge, but I
say that only because there may be modifications if the plea is not taken, you know, sooner rather than later, your Honor. THE COURT: What's the cutoff point on the
times to today, your Honor. THE COURT: Okay. At the request of the
MS. BAUMGARTEN: defense, Judge. THE COURT:
I'll tell you what
you do, come back here at 2:00 o'clock, and the government will agree to keep the plea open until
17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then? MS. BAUMGARTEN: THE COURT: available until then? MR. COMERFORD: THE COURT: I am, your Honor. Just Yes, your Honor.
Mr. Comerford, you're
Mr. Buczek, no coercion.
recognize what you face, okay? agreement again. All right.
Look at the plea I know you -- I mean,
you're a bright guy, and you've gone through it a lot, and you have your views on whether it requires consent, whether it's legitimate, whether there's been a plea of not guilty or guilty entered, all of those things, but, again, try to get your focus on being realistic in terms of what the choice is that you have to make. And take a look at it, do
whatever last minute discussions you have to do with Mr. Comerford, your parents, whatever the case may be. At 2:00 o'clock it comes to a close. That
will give you, one way or another, piece of mind, and then if it's don't go forward with trial, then we'll set a prompt time for the taking of a plea. We'll proceed to sentencing with a full opportunity for you to be heard to entrust me with making certain that the sentence is a fair sentence, and that's what I will do.
18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for then. If it means you're going to trial, keep in mind it will be a trial, and again, you will be treated very fairly, as will the government, but you need to prepare for trial. And maybe you feel you're But, you know, I
already there, I don't know.
think in your best interest, whatever effort you need to make to get prepared for trial, because so much is at stake for you, that you devote your time after 2:00 o'clock today, if you're going to trial, to preparing, because we will start Monday and Tuesday, and proceed through the week. 2:00 o'clock. MS. BAUMGARTEN: MR. COMERFORD: THE DEFENDANT: Thank you, Judge. Thank you, Judge. All right. I'll save it Okay.
I wanted to say something. THE COURT: Say it. Get it behind you.
And then please just do what I'm asking you to do, try to get your focus to whether or not you can accept or not, before the terms change, before there's not an option available to you. I'm saying. That's all
If there's no option -- I mean, think If you
about what that means if you're convicted.
feel that you have a defense, you're willing to take the risk, and you're willing to push the
19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 government to its ultimate to prove you guilty, it will be under the rules of court, evidence, procedure, and on the basis of the indictment which in this system is a legitimate charging instrument. And we will proceed forward on that basis, and then the consequences are what they are. THE DEFENDANT: I know, and I just on and
for the record all I've been looking for the original charging instrument forever. even know where it's at. copy. And I don't
Not a copy or certified
I don't know if I made myself clear the last Because you
time, but it's called the original.
can't be foreclosed on -- well, I'm -- not foreclosed on, you can't go to jail without the original charging instruments. THE COURT: document -THE DEFENDANT: THE COURT: clerk's office. I've never seen it. There is an original
-- that's on file with the
Is that not satisfactory to you? I've never seen it, Judge.
I've been down to the clerk's office, trust me, many, many times. And all I know is what I know,
and I know one thing, you have to have an original charging instrument before you can proceed on
20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yours. any -- if it's criminal, civil. That's why I keep
on saying this is not criminal, this is civil and there's no injured party. THE COURT: it, but guess what? Mr. Buczek. It is. You can say that. Guess what? You can say
It is criminal,
Please accept that in terms of You don't have to
at least what the instrument is.
acknowledge it necessarily, but it is, under our system, criminal, okay? THE DEFENDANT: THE COURT: So just keep that in mind. You know, I just --
What does the docket say, is
there an original indictment filed? THE CLERK: Judge, the indictment that's
filed, because it was publicly I don't think has the foreperson's name on it. There's just an S
slash one filed, because it's -THE COURT: Electronic. All right. Okay.
Anything additional, Mr. Comerford? MR. BUCZEK: No, your Honor. No, your Honor. Okay. Decision is
MS. BAUMGARTEN: THE COURT:
No force, no intimidation. THE DEFENDANT: Okay.
At that time could
I maybe get an opportunity to see the original instrument maybe?
21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: We'll get -Okay.
THE DEFENDANT: THE COURT:
-- whatever there is, it is
legitimately docketed and filed, just so you know, okay? THE DEFENDANT: All right. Thank you.
(Case was recessed.) THE COURT: Okay. Miss Baumgarten is
here, Mr. Comerford, and Shane C. Buczek is also here. You want to call the case again. resuming proceedings, please. THE CLERK: Criminal case 09-121, criminal We're
case 08-54, criminal case 09-141, United States of America versus Shane Buczek. THE COURT: Okay, thank you. Mr. Buczek,
I had asked you to, in effect, use the time wisely from the time that we had recessed until approximately 2:00 o'clock. It's now 2:15 p.m.
And what I will do at this point in time, and then I will further discuss what your intentions are in terms of proceeding, I will release to Mr. Comerford right now the original indictments in each of the three cases in which you are indicted. And you may take a look at those documents. They
22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Judge. THE COURT: All right. And then if you you said. MR. BUCZEK: The passport case I believe, are the originals. And then once you have viewed
them, I will take them back, and I will give you an attested to and certified copy of the original indictment so that you will have them. And I think
that should put to rest the concern you have that there is no original document on file. acceptable to you I take it? THE DEFENDANT: ink signature. THE COURT: signature, yes. I think it is blue ink Yes, Judge, if it's blue That's
Mr. Comerford, you want to take the three indictments please, and -- they bear the seal of the court as well, at least in terms of the filing of the document. All right. That is indictment number what that
you are showing to Mr. Buczek, Mr. Comerford? MR. COMERFORD: passport case I believe. THE COURT: I'm sorry, I didn't hear what 08-CR-54, Judge, the
would show him the second indictment, please, and
23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 made? THE COURT: Those are the originals, identify it by number. MR. COMERFORD: Judge, this is 09-CR-121
which is the Best Buy case. THE COURT: Okay. And that's the one we
are to proceed to trial on if we go forward with this case. MR. COMERFORD: MS. BAUMGARTEN: bank fraud, your Honor. THE COURT: Yes. And then 09-CR-141, which Yes, Judge. It's the charge of the
is the contempt charge, Judge. THE COURT: Okay. Judge, I don't see any
raised seals on any of these. THE COURT: MR. BUCZEK: Okay. The original -- apparently
these are the originals? THE COURT: THE WITNESS: They are the originals. How many originals were
Mr. Buczek, and what I'm going to give you is a raised seal, attested and certified copy. So that
I think should complete your picture that has been
24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 requested. These are the three attested to and
attested to and certified raised sealed copies that you are now being provided with. THE DEFENDANT: THE COURT: This is certified copies.
Attested to and certified. This is 08-CR-54, this is
09-CR-121, and this is 09-CR-141. THE DEFENDANT: with these. Okay. Judge, I'm familiar
I've already several times did an
acceptance, you know, setoff, and adjustment of the account. Numerous times. THE COURT: Well, it doesn't have to do What
with an adjustment of an account, Mr. Buczek. it is is the formal charge against you in three separate indictments. requested.
So, those are what you have
And I think that should put to rest the
concerns that you had that you were not properly indicted by a federal grand jury. So, the charging
instrument, if you will, is the criminal claim against you in each case. THE DEFENDANT: Which draws me to another
question, and I have never got an opportunity to ask Judge Schroeder about this, but there was apparently some type of order where I was not allowed to send anything to the IRS. To my opinion
25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it's bizarre, and why would that be that? THE COURT: collateral matter. Well, again, that may be a I'm not in any way conversant
with whether that's relevant or not to the indictment that constitutes the basis for going to trial next week. THE DEFENDANT: restriction of my rights? THE COURT: That's -- we're not here to The issue is what Wouldn't that be a
discuss any of that, Mr. Buczek. you've asked for. indictments.
You've received your
You now know that there are originals
of the indictments that you face, and you are to view those in the context, please, of the negotiated plea agreements relative to those three indictments. You have to make a decision whether
you are going to go forward by way of plea as proffered and otherwise the plea offer is off of the table. This is your final chance really to And if you do not accept
accept that plea offer.
it, then I urge you to begin further preparations for trial. We do start on Monday. Well, there is
a conference I think on Monday, right? MR. COMERFORD: THE COURT: That's right, Judge. So I consider that
26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 part of the trial process. And to consult with in
all respects Mr. Comerford to assist you in preparation and decision making and determination of the applicable rules of evidence and procedure. Again, what I'm trying to suggest to you is that whatever your decision is, ultimately if there is to be a sentencing and in any one of your cases or all of the cases I will be, to the best of my ability, immanently fair to you and to the government. And I will be open to whatever
considerations are proper matters for consideration under such factors -- consideration as Section 3553(a) factors in connection with sentencing, and I will do the same for the government. the decision now must be made by you. THE DEFENDANT: Judge, on February 25th, So, really
which was yesterday, I filed a document called a Notice of Mistake and Declarations in Support of Notice of Election of Chosen Action Conversion of All Liability. On page 2, number 3 -- and I can
verify this with transcripts later -- page 2 -I'll wait until you get there. Number 3 says as
the magistrate has so converted all liability of the defendant as surety for the same, I accept for value said conversion without recourse or
27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point. point. THE COURT: All right. You've made the reservation. I've never taken a not guilty plea in
this case, Judge. THE COURT: All right. So does that mean
you are going to proceed to trial in any event? THE DEFENDANT: No, I just want to stay on
You either go to trial or you don't, I'm trying to be as fair with you as I You have to make that decision. I
Mr. Buczek. possibly can.
know it's difficult, and there comes a time when we all have to make difficult decisions, but, again, keeping in mind you have that appeal right as defined in the plea agreement. I will be, if there
is a plea, the sentencing judge, and I will be as fair as I possibly can be to you. Otherwise, you
face the possibility of more dramatic consequences in the event of a conviction. But you are presumed
innocent under the law, and the government has the exclusive burden of proving you guilty beyond a reasonable doubt. THE DEFENDANT: Judge, are you going to
make -- I guess you're going to make rulings on said paperwork that's been filed last week and this week?
28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: I am. Okay. Well, I just want
to put it on and for the record then that the conversion has been made. transcripts. And I do have those
I don't have them on me or in front
of me right now, but let the record show that the judge elected -- made a chosen decision to go ahead and put a not guilty plea in for me and accepted all liability. So it's all right here. I can read
this whole thing into the record. THE COURT: No, that's really okay. You
filed what you have filed. THE DEFENDANT: I want to stay focused
just on this one document, because I don't want to dove off, because all these already have been -- in my belief system, it's already been set off. THE COURT: Well, again, we're getting And
back to whether you're going to trial or not.
I am prepared to issue a decision, if need be, an order, relative to the outstanding matters before me, including the petition to dismiss the Lack of Ratification of Commencement and No Controversy, that's one; the affidavit of Negative Averment, Opportunity to Cure, and counterclaim, seeking dismissal of the indictment; and there's a matter
29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of -- relating to docket number 66, and also your global demand to recuse certain individuals from the case for purposes of -- or at least based upon conflict of interest. And you also have a Global
Demand to Dismiss for Malicious Selective Vindictive Prosecution, and that's also tied into the disqualification of AUSA Anthony Bruce. make rulings with respect to all of those. can tell you right now, I mean, all of those matters will be denied. THE DEFENDANT: THE COURT: I know. I will And I
Okay. I know. But I'm not the
one that called Anthony Bruce vindictive, it was Judge Schroeder, so let the record reflect that. Any time you have any type of presumption, not only one case, but all three cases are spoiled. It's
like -- what is it, the fruit from the poisonous tree doctrine. THE COURT: Once again, there's a lot of
matters we could talk about for a long period of time. But as I mentioned earlier, there comes a
point in time where you have to make the difficult decision. And that what appears to me to be a
difficult decision for you is whether you go to
30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 purposes. trial starting Monday or Tuesday of next week, whichever way you want to view it, or whether or not we proceed with a plea to the plea agreement that has been proffered to you and that you have reviewed with both Mr. Comerford, and, as I understand it, Miss Baumgarten in an effort to make certain that there were no misunderstanding with respect to the terms and conditions of that plea offer. So -MS. BAUMGARTEN: Judge, there were other
individuals present when I was speaking with Mr. Buczek. Although he is pro se, Mr. Comerford
has been present during those discussions, your Honor. THE COURT: Mr. Comerford -MS. BAUMGARTEN: and also Mr. Buczek's dad. THE COURT: Okay. All right. The agent from the FBI Okay. It was you,
MR. COMERFORD: THE COURT:
That's correct, Judge.
All of that is for record
You know, in my judgment you've had I tried to
enough time to make the decision. accommodate as best I can -THE DEFENDANT: I know.
31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: -- with addressing your And I think we're at that
concerns and your needs. point. THE DEFENDANT:
I understand -- that part But to say I
I -- I comprehend what you're saying.
understand would be not accurate, because if you understand, it shows that there's what? Controversy. And I'd like to bring that up one
more time on and for the record that we know there's no controversy, and I understand -- I understand there is a lot of money riding on this case in Wall Street. I understand that. And it's
not about right or wrong, and, you know, that part. But, Judge, come on, we know there's no controversy here. THE COURT: and I differ. THE DEFENDANT: THE COURT: Well -Well, see, that's where you
The controversy is the result
of the criminal charge that's brought against you. That is the controversy. it as such. You may not acknowledge You
The controversy works this way.
are charged with committing a crime, okay, and I know you're smiling at me and I'm kind of smiling back, because we've been through this so many
32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 times. The fact of the matter is if the
government's proof is enough to convince a jury beyond a reasonable doubt and you are convicted, then we have to proceed on that basis. And you
know the consequences are likely more dire under that scenario than they are pursuant to the terms and conditions of the plea agreement. So, there is
a case in controversy here from a criminal law standpoint. The indictment charges you with
committing a crime, and I produced for you the original indictment. You now have an attested to
and certified copy of that indictment returned by a properly impaneled federal grand jury on the basis of evidence presented to it. evidence, that's true. The document is not
But it contains a statement
of the charge that you face going into this trial, and you have the presumption of innocence that you can carry with you through the course of the trial. That's your choice. On the other hand, you have
the opportunity to enter a plea that disposes of all three indictments. You need to make that decision. to force you to do it. decision. Nobody's going
You have to make that But you're
That's what you need to do.
not going to be forced into it by me our anybody
33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 else. You, of free will, recognizing what you have
by way of countering evidence, if any, whatever arguments can be preserved for appeal, whatever, they all come in to play. But the fact of the
matter is you have a charging instrument, a trial scheduled, you're going to trial if you don't decide now. Okay. But I've never taken a not
guilty plea, and that's my -- I don't want to pound this down, but it's right here, Judge. THE COURT: you're guilty then? THE DEFENDANT: No. How could I be guilty Well, are you saying that
when there's no ratification of commencement? THE COURT: are charged. No, we're not getting -- you You don't
Please accept that fact.
have to agree with it from your philosophical standpoint. You don't have to do that. But the
fact of the matter is under our legal system you are charged with committing a crime. You are
presumed innocent until proven guilty, but you have to work within the four corners of the system to deal with that, and that's where we're at. THE DEFENDANT: Okay.
Any last comments on
the -- what I just brought up about the --
34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: None whatsoever. No. It's
either you go pursuant to a plea agreement or you go to trial. THE DEFENDANT: Will there be -- I guess
the U.S. attorney's office doesn't have the liability to answer any of the paperwork that we put in? They've already been denied, right?
Generally you're supposed to answer -- when you put a document in, you're supposed to answer it. MS. BAUMGARTEN: I think a response, your
Honor, was filed with respect to the recusal motion. filing. I did see after hours that there was a Quite frankly, your Honor, I have not yet
had an opportunity to review it based on the press of other matters and preparing for these proceedings today that I thought were going to proceed a certain way. THE COURT: Okay. But I'm --
MS. BAUMGARTEN: THE COURT:
I've considered everything I
need to consider for purposes of the decision, and there will be an elaboration on that, but nevertheless, you know the outcome of the decisions on the matters that I referenced. It's not always
essential that the government submit on each and
35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 okay. THE DEFENDANT: I think you said enough. entity. THE COURT: I'm not sure what a corporate every issue. It's not mandated. If I feel that I
have enough to make a determination, I do it, not just in your case, Mr. Buczek, but in many, many cases, particularly criminal cases. THE DEFENDANT: And I know you've already
made a record you do see me as a living, breathing man, and you -- you understand that. THE COURT: I mean, I think everybody here
sees you as a living, breathing man. THE DEFENDANT: Right, not a corporate
entity looks like, but nevertheless, you are a living, breathing man by my account. having an intelligent dialogue here. And we're I think, were
you not living and breathing, we wouldn't be able to do that, right? THE DEFENDANT: THE COURT: Yeah, you'd think so.
One would think. Right.
THE DEFENDANT: THE COURT:
I mean, I've -- you know --
I just want to make a record of it that in my opinion, because I don't want to make a formal
36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 finding because I'm not a judge, but I don't see -you know, I see no controversy, I see no ratification of commencement, I see no injured party, and I know you see this as a criminal issue, that's why I say, okay, I'm looking for the real party, which is the injured party, that's what I'm trying to get to. And, you know, all liability
drops back on to the magistrate that pleaded not guilty. I never have. THE COURT: It's on the record.
Well, you have a chance to
plead guilty now if you choose. THE DEFENDANT: Well, I conditionally
accept that, Judge, upon proof of claim which I have not seen, which gets back to the ratification under Rule 17. MS. BAUMGARTEN: bring up a point. Your Honor, if I may
One of the issues that was
discussed, without getting into too much detail, is the proof that the government would have if we proceeded to trial as to all three matters. That
has been set forth in the proposed plea agreement. I say that by way of explanation so that it's clear the defendant understands that while -- and it's been made clear in the plea agreement, the government understands it would have the burden to
37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prove to a jury selected by the Court if we proceeded to trial, each and every element of each of the offenses beyond a reasonable doubt, that what he would have to agree to is that a reasonable jury could make that finding based upon the proof that we anticipate. I know, for example, what we
would proceed with at trial at least as to the first one, your Honor. THE COURT: Okay. And I know I submitted
the proposed plea agreement document, and as you were just getting up to speak, I was reaching for that same document and looking at the factual basis statement, which is a statement of at least some of the evidence that would be presented in the case or in the cases, and from which I would have to make a determination that that evidence, as set forth, is a sufficient basis from which a trier of fact could conclude guilt beyond a reasonable doubt on each of the essential elements, and that's what I'm prepared to do. And you are on notice of what the
government states is its evidence and factual basis in part that supports the essential elements and the government's burden in each of the three cases, and it's all set out in your plea agreement document, which I know you have reviewed with
38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 old. me. read it. THE COURT: I read it, yeah. You have, okay. That's Mr. Comerford. THE DEFENDANT: THE COURT: You have read it?
You've read it? I was wondering if you
the thing I was getting back to was that I'm reading through it and reading through, okay, all right, where is the injured party? it, I don't see it. THE COURT: I'm looking for
I'm going through it -Okay. Where's the ratification
THE DEFENDANT: of commencement?
I'm looking through it. Mr. Buczek, let's get real,
okay, let's get down to business. THE DEFENDANT: THE COURT: All right. Same old, same
You're hearing the same old, same old from I don't want to insult your intelligence. You
know you don't want to insult mine. on the same wave length that way.
I mean, we're You know we have
to make the decision -- not we, you, and the only part of that that rests with me is just to tell you that if you choose to go to trial, we start the
39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a recess? THE COURT: For how long? Ten minutes. Okay. All right. We'll process on Monday. Okay. And I will preside over
the trial under the criminal rules of procedure and the rules of evidence. will proceed. All right. That's how we
And you know -- you know what my
rulings have been with respect to any positions that you take that can be considered on the issue of intent, or as in any other way relevant or irrelevant. Those have already been discussed.
So, let's have your decision. THE DEFENDANT: THE COURT: Okay.
What do you want to do, do you
want to go pursuant to the plea agreement, or do we start trial on Monday? THE DEFENDANT: THE COURT: Trial today? Monday.
THE DEFENDANT: THE COURT:
There will be the conference,
and then jury selection on Tuesday. THE DEFENDANT: Okay. Judge, may we have
THE DEFENDANT: THE COURT: take ten minutes. Yes.
We'll resume -- why don't we Gives you five minutes
take 15, is that all right?
40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 extra, and we'll start here again at five minutes of three. MR. BUCZEK: THE COURT: Thank you, Judge. All right.
(Short recess was taken.) THE COURT: Okay. I think you have to put
the sound system on please, Miss Labuzzetta. Okay. We are resumed. It's now 3:00 o'clock
Miss Baumgarten is here,
Mr. Comerford, and Shane Christopher Buczek. Mr. Buczek, you asked for a few moments, I gave you roughly now 20, and the purpose was to allow you to have additional time to make that very important decision that we've been talking about for some time now, so -THE DEFENDANT: Judge, I -- I immediately
received something from public defender's office. Page 1 it's from Westlaw Federal Rules of Criminal Procedure Rule 11(4) where it says failure to enter a plea, if the defendant refuses to enter a plea or the defendant organization fails to appear, the court must enter a plea of not guilty. THE COURT: Well, I sent that to you,
Mr. Buczek, to your attorney, because you had raised a question about whether or not you had
41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 entered a plea of not guilty, and you referred to Judge Schroeder. It's not an issue, just so you
know, like everything we're going to be doing, the law is the law, and the rules are the rules. 11(a)(4) is the rule that applied when Judge Schroeder entered the plea of not guilty. no further discussion on that. information. There's
That was for your
Everything right now is copacetic There's no discussion other
from my standpoint.
than whether you accept the plea agreement terms or whether you are going to go to trial starting Monday. THE DEFENDANT: Judge, you know, as a
peaceful inhabitant, I respectfully -- you know, respect you and your findings and all that. But
does anybody here in this courtroom have firsthand knowledge that I'm a defendant? and over and over again. THE COURT: Mr. Buczek, please. Please, I made that over
Mr. Buczek, okay, you know you're a defendant, you know it, and you know -THE DEFENDANT: THE COURT: I don't.
You do know it, Mr. Buczek. No. You No
The indictment says you are a defendant. discussion. You are named as a defendant.
42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have been given the original copies of the -- the original indictments to review. No. No. You've You
had certified copies of those indictments.
either go to trial, Mr. Buczek -- it's a tough decision, yes. being forced. But make the decision. You're not
If you choose not to tell me right
now, that means you're going to trial next week. It boils down to that. THE DEFENDANT: Judge, can I see those
original instruments again? THE COURT: No, you've seen them. Okay. Because I didn't
have an opportunity to inspect them thoroughly. THE COURT: You did. You had ample
opportunity to see them. of those indictments. THE DEFENDANT: THE COURT: agreement.
You have a certified copy
Okay. Now, you have a plea
I will take your plea pursuant to the
terms and conditions of the plea agreement, or you go to trial next week. THE DEFENDANT: One or the other. Okay. Well, you know, I'm
not sure exactly what rule it is, but I know that the counterclaim must be answered point for point. THE COURT: No. There is no counterclaim
43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here. No counterclaim. You're presumed innocent The government has
going into a criminal trial.
the burden of proving you guilty beyond a reasonable doubt. right? THE DEFENDANT: THE COURT: All right. No counterclaims at all. All
If you have a defense, that But it has to be a
will be recognized at trial.
legally cognizable defense in a criminal action with you, Shane Buczek, the defendant, the subject of an indictment returned by a properly constituted federal grand jury. about. That's what we're talking
Whether you have other views on how that
positions you for purposes of this case, that's your mindset. the trial. decision. It's not anything that will delay
You are now in need of making that We can't go on like this forever.
THE DEFENDANT: THE COURT:
And I want you to prepare for And if you're not
trial if you need to do that.
going to prepare for trial, at least -- at the very least rely on your backup counsel Mr. Comerford to do whatever he can do to get you ready for trial, because you are going to trial if you're not going to plead guilty here this afternoon.
44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 am. THE COURT: No, no. Really, we've been You are the THE DEFENDANT: Judge, I -- I can't take I -- I -- I
any more of the Court's time up.
already know that they're -- I should say that my opinion I guess. no case. In my opinion there's absolutely
All three of these cases are based on I just -- I can't -- I don't
want -- if I sign this deal, okay, in my mind I'm admitting to the fraud that's continuing -continuing going on now for two years. opinion. That's my
I'm not making a formal finding of fact
and conclusion of law that's required by every judge to make in all the districts. THE COURT: No, that's not true. I'm not here to debate. I
just want to let you know on and for the record -THE COURT: No. I -- I -- what I read in I
here, I just -- it's amazing, but that's okay.
mean, I clearly know that on and for the record I'm not the defendant. THE COURT: Nobody has -Mr. Buczek --- to acknowledge who I
talking about this a long time.
45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defendant. You are, okay? And there's an And it's
instrument charging you as a defendant. an issue of proof.
Whether you think there's
vindictiveness or not, that's not a matter of proof for trial. So, you know, come to grips with the
decision that you have to make and make the decision one way or another, and then we'll go forward. THE DEFENDANT: I have already began a
counter offer for the U.S. attorney's office, but they said they're absolutely not interested. have started preparing a counter offer. MS. BAUMGARTEN: Your Honor, as I had But I
mentioned previously, I think that we're at this point now, based on the defendant's request for some additional time, it's really -- we are where we are, your Honor, and the consideration in part in the plea agreement is based on him taking a timely plea. At this point, your Honor, it would
not be an opportunity to attempt to negotiate further, and we would be ready for trial on Tuesday. THE COURT: I think the government has -I know.
THE DEFENDANT: THE COURT:
-- gone that extra mile, that
46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 extra step to get to where we are. their offer open until now. They've kept
Really, maybe the
cutoff point was somewhere around 2:00 o'clock. And it's 3:10 now. It's not to put unnecessary But I think the end result
time pressures on you.
is if you use the time properly to ready yourself for trial, that might be your -- in your best interest. It's not productive to keep on repeating
what we've talked about time and time and time again. So, either you're accepting of the plea
offer, which is final, absolutely, unequivocally final, and you are not admitting to anything other than the factual basis information that's in that particular plea agreement. That's the evidence
that the government says is a sufficient basis to support a conviction of you on the various charges. That's all you're agreeing to, there's all kinds of other things that are -- no -- collateral or whatever. But the four corners of the plea
agreement document relates to the indictment charges, that's it, not all those other things, just by our rules. By our I mean this legal
system, the criminal justice system, you are an indicted defendant three times over in these three different cases, so you have to deal with them. one
47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 plea gets rid of them all. but that's it. I will sentence you,
If you can't make the decision, no Trial starts Monday. I know you don't feel good
THE DEFENDANT: about this. THE COURT:
You know -And I --
THE DEFENDANT: THE COURT:
I don't know how to answer
that one, that's tough. THE DEFENDANT: I know, because I think I
comprehend what you're saying, and I have a certain belief system I know it's 100 percent true. And I
know there's elements that you need and I know one thing that we talked about before that I'm not an U.S. employee, I'm not in the military, and -- I'm me. I don't know what else to say, I mean -THE COURT: agreement on that. THE DEFENDANT: Right. But when I look at You are you, and we're in
the total circumstances of these three indictments, and I can't really get into details, but I'm reviewing this plea. As badly as I want to be done
with this, there's things in here that are not true and correct that was based on perjury -- and getting back to perjury nothing is done with
48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 right. firsthand knowledge. nobody -THE COURT: No, Mr. Buczek -There's so many issues That's why I mean, Judge, there's
that -- and I'm not here to argue it.
I'm looking at it and saying why would I want to argue. Wait a second, there's no controversy. THE COURT: that's it. THE DEFENDANT: THE COURT: Thank you. We will see you what Okay. All right. I think
time Monday morning -- or Monday afternoon. THE CLERK: THE COURT: Monday morning at ten, Judge. 10:00 o'clock. Okay. All
Be ready for trial. MS. BAUMGARTEN: MR. COMERFORD: * * * Thank you, Judge. Thank you. * * *
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
I certify that the foregoing is a Correct transcription of the proceedings Recorded by me in this.
s/Michelle L. McLaughlin Michelle L. McLaughlin, RPR Official Reporter U.S.D.C., W.D.N.Y.