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Law360, New York (May 11, 2020, 6:07 PM EDT ) Former Goldman Sachs banker Bryan Cohen should not be sentenced for insider trading until the coronavirus outbreak subsides enough to allow for an appearance in court, Manhattan federal prosecutors said Friday, after Cohen asked to go forward via video citing the "uncertainty and stress" of continuing to wait.
The back-and-forth leaves U.S. District Judge William H. Pauley III with the task of deciding whether Cohen's scheduled May 28 sentencing should go ahead remotely.
Cohen, who participated in what evidence has shown was a massive insider trading ring, entered a surprise guilty plea in January, telling Judge Pauley he passed tips to traders in exchange for cash. In a May 6 letter, he asked for his sentencing, which was originally scheduled for April, to go forward via video or audio.
"Mr. Cohen has been on home detention for more than six months, largely separated from family and friends. As a French citizen, he is unable to obtain gainful employment in the United States in his current situation," he told the court.
But in their response, the feds said the sides should be "able to interact and engage in-person" so there is a "full and fair opportunity to consider all the arguments" in court before punishment is handed down.
Both sides referenced the Coronavirus Aid, Relief and Economic Security Act, better known as the CARES Act, passed by Congress in March, which authorizes felony sentencings to proceed remotely.
But prosecutors said that remote sentencing under the CARES Act requires "specific reasons" for why that should happen. The feds argued Cohen's "uncertainty and stress" are "common feelings among convicted felons awaiting sentencing." Cohen has not shown specifically why his sentencing can't wait and be held in person, they said.
Cohen is one of three criminal defendants to have been convicted in the ring — businessman Telemaque Lavidas was convicted by a jury and trader Marc Demane Debih is cooperating with prosecutors.
At least four others face criminal charges. Of those four, only one, Joseph El-Khouri, has been taken into custody. El-Khouri is in the United Kingdom, awaiting possible extradition to the United States. Three defendants, Georgios Nikas, Benjamin Taylor and Darina Windsor, are at large.
Two others, Tomer Feingold and Dov Malnik, face civil charges brought by the U.S. Securities and Exchange Commission.
Cohen's lawyer had no comment on Monday.
Cohen is represented by Ben Brafman of Brafman & Associates PC.
The government is represented by Richard Cooper, Daniel Tracer and Drew Skinner of the U.S. Attorney's Office for the Southern District of New York.
The case is USA v. Cohen, case number 1:19-cr-00741, in the U.S. District Court for the Southern District of New York.
--Editing by Michael Watanabe.
For a reprint of this article, please contact reprints@law360.com.
