Opinion
21-cr-170 (MKV)
05-24-2022
UNITED STATES OF AMERICA, v. DIMITRIOS LYMBERATOS, Defendant.
SEALED ORDER
THE HONORABLE MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE.
IT IS HEREBY ORDERED that a sentencing control date in this case will be set for December 2, 2022.
IT IS FURTHER ORDERED that on or before November 21, 2022, the parties shall file a joint letter regarding the status of this case.
SO ORDERED.
ORDER
The Court hereby orders that delayed docketing is no longer necessary in the above-referenced case, and that the case is unsealed as per consent of the parties at the April 24, 2023 sentencing. However, the Government's 5K1.1 letter and the Victim Impact Statement shall remain sealed unless otherwise ordered by the Court. The Clerk of Court respectfully is requested to unseal all other sealed documents in this case.
SO ORDERED.
The Silvio J. Mollo Building One Saint Andrew's P\a-a New York, New York 10007
May 24, 2022
REQUEST TO FILE UNDER SEAL
BY EMAIL
The Honorable Mary Kay Vyskocil
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re: United States v. Dimitrios Lymberatos, 21 Cr. 170 (MKV)
Dear Judge Vyskocil:
The parties respectfully submit this joint status update letter in the above-referenced matter in advance of the sentencing control date of June 3, 2022.
On or about December 3, 2021, the defendant pleaded guilty pursuant to a cooperation agreement with the Government. The defendant's cooperation is still ongoing, and may include testimony in another criminal case pending in this District. No trial date is scheduled yet in that matter. Accordingly, the parties jointly submit that a six-month adjournment of the sentencing date for the defendant is appropriate.
Because this letter references the defendant's cooperation, the disclosure of which could compromise ongoing investigations and present risks to the safety of the defendant, the Government further requests, also on consent, that this letter and any resulting order be filed under seal.
Respectfully submitted, DAMIAN WILLIAMS United States Attorney
Jacob R. Fiddelman, Redar S. Bhatia Assistant United States Attorneys
SEALED APPLICATION
JACOB R. FIDDELMAN hereby affirms, under penalty of perjury and pursuant to Title 28, United States Code, Section 1746, as follows:
1. I am an Assistant United States Attorney in the office of the United States Attorney for the Southern District of New York, and I am familiar with this matter. By this application, the Government seeks an order of the Court directing that subsequent filings, transcripts, and other docket entries in the above-captioned case be filed under seal.
2. On or about October 9, 2020, the defendant was arrested and presented before the Honorable Barbara Moses, United States Magistrate Judge for the Southern District of New York. The defendant was ordered released on bail that day on conditions agreed to by the defendant and the Government. On or about March 10, 2021, the defendant appeared before this Court and waived indictment, and an Information was filed against the defendant.
3. Since that time, the defendant has cooperated with the Government, providing information and proactive assistance to law enforcement with respect to known oxycodone and ketamine traffickers operating in the New York metropolitan area. The defendant now intends to plead guilty to a Superseding Information pursuant to a cooperation agreement with the Government. The Government anticipates that, after further investigation, information provided by the defendant may be presented to a Grand Jury in this District, for purposes of obtaining an indictment against the defendant's coconspirators and other targets of his cooperation, and further that subpoenas may be issued in the name of the Grand Jury for records pertaining to this investigation, including financial records relating to the targets.
4. Although there is a qualified right of public access to Court documents, the Second Circuit has recognized that documents may be filed under seal to protect, among other things, a cooperating defendant's safety or to further ongoing law enforcement efforts, including grand jury investigations. See United States v. Cojab, 996 F.2d 1404, 1407-09 (2d Cir. 1993) (affirming sealing order); United States v. Haller, 837 F.2d 84, 88 (2d Cir. 1988) (affirming decision to seal that portion of a plea agreement that referred to a defendant's ongoing cooperation); see also Fed. R. Crim. Pro. 49.1(d) and (e) & advisory committee note (permitting a court to order filings to be made under seal, and explicitly listing, as examples, "motions for downward departure for substantial assistance" and "plea agreements indicating cooperation"). The Second Circuit has also recognized that even docketing the applications to seal those materials could be prejudicial, and in such cases the applications themselves and related notes to the docket could be sealed. See United States v. Alcantara, 396 F.3d 189, 200 n.8 (2d Cir. 2005).
5. Compelling security and law enforcement interests support an order directing that filings and other docket entries in this case be made under seal. The investigative targets who are the subject of the defendant's cooperation include one or more substantial narcotics traffickers, who are potentially capable of harming the defendant, were the defendant's cooperation to be exposed. Exposure of the defendant's cooperation would also jeopardize an ongoing investigation into the defendant's coconspirators and others, and could place at risk undercover officers, other investigative agents, and other confidential sources who might participate in those investigations. An order sealing filings and other docket entries in the above-captioned case would greatly reduce the risk that the defendant's ongoing cooperation with the Government will be exposed prematurely.
6. The defendant's cooperation (and the additional charges against him) will not be kept sealed indefinitely, however. The Government anticipates that, once the defendant's cooperation leads to the arrest and prosecution of the targets of this investigation, the filings and docket entries in this case may be unsealed. At that time, the Government will move this Court for an order unsealing the filings of this case.
7. Accordingly, the Government requests that all future filings, transcripts, and other docket entries in the above-captioned case, including this application and any order issued in connection with it, be filed under seal until further order of the Court. No prior request for the relief set forth herein has been made. The defendant has consented to this application.
November 29, 2021
Jacob R. Fiddelman Assistant United States Attorney Southern District of New York
Re: United States v. Dimitrios Lymberatos, 21 Cr. 170 (MKV)
Dear Judge Vyskocil:
On December 3, 2021, defendant Dimitrios Lymberatos pleaded guilty pursuant to a cooperation agreement with the Government. Although Lymberatos's cooperation remains ongoing until the defendant against whom his testimony might be needed is sentenced, the parties expect that process to conclude within approximately the next 30 days. Accordingly, the Government respectfully requests that the Court schedule sentencing for Lymberatos in January 2023 and direct the Probation Office to begin its presentence investigation. Lymberatos, through counsel, has no objection to this request.
Because this letter references Lymberatos's cooperation, which is not publicly known and the disclosure of which could still compromise ongoing matters, the Government requests that this letter and any resulting order be filed under seal, pursuant to the preexisting sealing and delayed docketing order in this case. In connection with sentencing, the Government will be prepared to address lifting the delayed docketing order and unsealing certain records and prior proceedings.
Respectfully submitted, DAMIAN WILLIAMS United States Attorney
Jacob R. Fiddelman, Kedar S. Bhatia Assistant United States Attorneys
Re: United States v. Dimitrios Lymberatos, 21 Cr. 170 (MKV)
Dear Judge Vyskocil:
On December 3, 2021, defendant Dimitrios Lymberatos pleaded guilty pursuant to a cooperation agreement with the Government. Although Lymberatos's cooperation remains ongoing until the defendant against whom his testimony might be needed is sentenced, the parties expect that process to conclude within approximately the next 30 days. Accordingly, the Government respectfully requests that the Court schedule sentencing for Lymberatos in January 2023 and direct the Probation Office to begin its presentence investigation. Lymberatos, through counsel, has no objection to this request.
Because this letter references Lymberatos's cooperation, which is not publicly known and the disclosure of which could still compromise ongoing matters, the Government requests that this letter and any resulting order be filed under seal, pursuant to the preexisting sealing and delayed docketing order in this case. In connection with sentencing, the Government will be prepared to address lifting the delayed docketing order and unsealing certain records and prior proceedings.
IT IS HEREBY ORDERED the sentencing in this case will take place on January 24, 2023 at 1 lam at 500 Pearl Street, New York, NY in Courtroom 18C.
IT IS FURTHER ORDERED defense counsel shall be in touch with probation in the next 2 weeks to set up interview United States Attorney and no interview shall take place without counsel present.
Defendant's sentencing submission is due 1/10/23
Government's response is due 1/17/23
Re: United States v. Dimitrios Lymberatos, 21 Cr. 170 (MKV)
Dear Judge Vyskocil:
The Government writes to respectfully request a 45-day adjournment of the January 24, 2023 sentencing of cooperating defendant Dimitrios Lymberatos. The sentencing of the defendant as to whom Lymberatos is cooperating was recently adjourned to early February 2023. The parties respectfully submit that Lymberatos should not be sentenced until the case in which he is cooperating has concluded. Accordingly, the parties respectfully request that the Court adjourn Lymberatos's sentencing to a date in early March 2023 that is convenient for the Court and that the Probation Office be permitted to adjourn the deadline for the final Presentence Report accordingly. The defendant consents to this request.
Because this letter references Lymberatos's cooperation, which is not publicly known, the Government requests that this letter and any resulting order be filed under seal, pursuant to the preexisting sealing and delayed docketing order in this case. In connection with sentencing, the Government will be prepared to address lifting the delayed docketing order and unsealing certain records and prior proceedings.
Re: United States v. Dimitrios Lymberatos, 21 Cr. 170 (MKV)
Dear Judge Vyskocil:
The Government writes to respectfully request a 45-day adjournment of the January 24, 2023 sentencing of cooperating defendant Dimitrios Lymberatos. The sentencing of the defendant as to whom Lymberatos is cooperating was recently adjourned to early February 2023. The parties respectfully submit that Lymberatos should not be sentenced until the case in which he is cooperating has concluded. Accordingly, the parties respectfully request that the Court adjourn Lymberatos's sentencing to a date in early March 2023 that is convenient for the Court and that the Probation Office be permitted to adjourn the deadline for the final Presentence Report accordingly. The defendant consents to this request.
Because this letter references Lymberatos's cooperation, which is not publicly known, the Government requests that this letter and any resulting order be filed under seal, pursuant to the preexisting sealing and delayed docketing order in this case. In connection with sentencing, the Government will be prepared to address lifting the delayed docketing order and unsealing certain records and prior proceedings.
The extension request is GRANTED. The sentencing is ADJOURNED to April 4, 2023 at 11:00 AM.
SO ORDERED
SEALED ORDER 21 Cr. 170 (MKV)
WHEREAS, an application has been made by the United States of America, with the defendant's consent, for the temporary sealing of future filings, transcripts, and docket entries in the above-captioned case;
WHEREAS, the Court finds that the defendant's safety may be placed at risk and active law enforcement investigations may be compromised if the Government's application is not granted;
IT IS HEREBY ORDERED that all future filings in the above-captioned case be filed under seal until further order by this Court;
IT IS FURTHER ORDERED that no further docket entries shall be made in the above-captioned matter until further Order by this Court; and
IT IS FURTHER ORDERED that counsel for the defendant and the Government may be provided a copy of the transcript of proceedings in this matter without further Order of the Court; and
IT IS FURTHER ORDERED that the Government shall report to the Court on or before six months after execution of this Order regarding the continuing need, if any, to maintain these matters under seal.
SO ORDERED: