Hon. Sidney H. Stein Page 6
United States District Judge July 29, 2022
which arm he would prefer to be handcuffed. Furthermore, when USI applied the handcuff, they
put four fingers (of their own) through the cuff to ensure that Clark had room, and they also
employed a safety lock to ensure that the cuff did not tighten. In sum, what Clark describes as
retaliatory was, instead, the product of the Government’s, USMS’s, and USI’s efforts to respond
to defense counsel’s requests in a way consistent with the USMS policy regarding restraint.
Clark next claims that, when he returned from Court on May 31, 2022, some of his legal
papers were “spread about” his hospital room, while others were “removed”; he also asserts that
he was told that the Court had given guards “‘carte blanche’ to violate any and all of [Clark’s]
rights as they desired.” (Dkt. 147, p. 2). There is zero evidence, whatsoever, to support these
allegations. Rather, as is routine, this inmate’s room was searched by USI while he was at court—
e.g., to ensure that he did not have any sharp objects, including small medical apparatus, such as a
used needle. While Clark was at court, USI guards were also directed to remove Clark’s extra side
table—which belonged to the Medical Center, not to Clark—as it was needed for another patient
at the Medical Center.2 Prior to removing Clark’s extra side table, USI ensured that all of Clark’s
possessions from this table were located; USI left these possessions in Clark’s room in an
organized fashion.
Access to Counsel: Clark alleges that one visit with Mr. Lipton was limited to one hour.
In his letter, Clark acknowledges that, “This may have been remedied,” as their subsequent
meeting was two hours long. Id. at 3. Nonetheless, Clark expresses the concern—without any
explanation or basis—that these lengthier visits may not continue in the future. Clark then
concludes, “I cannot make use of my legal advisor if I don’t have sufficient access to him.” Id.
To reiterate what is stated above, the parties’ collective efforts ensured that, while Clark
was in USMS custody, he was authorized to (1) speak by phone with Mr. Lipton every day; and
(2) meet in person with Mr. Lipton as frequently as they wished. (In-person visits simply required
notifying USMS approximately one business day before a visit.) USI informed the Government
that the “standard” meeting length is one hour; that temporal limit appears to have been imposed
for Mr. Lipton’s first in-person visit with Clark. Subsequently, Mr. Lipton informed the
Government that he would like multi-hour visits; and at the Government’s request, USMS
promptly directed USI accordingly and remedied any complaint on this score.3
2 Clark’s room at the Medical Center was a “double room”—i.e., it was meant for two patients—
but Clark was the only patient in that room.
3 Clark also complains about the confidentiality of his communications with counsel—and in so
doing, Clark misconstrues the record. Specifically, Clark accuses USI guards of (purportedly)
violating an Order of Judge Nathan’s relating to the confidentiality of communications—but Clark
cites an Order (Dkt. 111) that merely directed the Government to file a letter, which the
Government did. (See Dkt. 111 (Memo Endorsement: “The Government is hereby ORDERED to
confer with the Marshals Service and file a response to this letter on or before November 19,
2021.”); see also Dkt. 112 (Govt. Letter dated Nov. 19, 2021). Contrary to Clark’s assertion, Judge
Nathan did not order USMS to do anything in this case; she did not need to. Clark’s zealous
counsel, the Government, and USMS collaborated to accommodate various requests of the
defendant, including extensive arrangements relating to privacy, as noted above.
Hon. Sidney H. Stein Page 7
United States District Judge July 29, 2022
Sending and Receiving Mail: Clark alleges that he is not allowed to send or receive legal
or consular mail. This is an unusual allegation for several reasons. First, and most elementally,
Clark did receive legal mail. For instance, on February 25, 2022, Clark’s then-counsel, Stephanie
Carvlin, Esq., emailed the Government, in substance and part, as follows (emphasis added):
I need to get legal materials to Mr. Clark that he wants to review for
sentencing (sentencing memoranda that have been filed so far, cases, chat
logs, etc.). He tells me it can be mailed, and he provided a mailing
address at the hospital (hospital address and his room). This is a box full
of papers (printed and will be mailed by [a paralegal]). I want to be sure
the material gets through without problems since time is getting short. Can
you give the USMS a heads up?
The same day, the Government contacted a USMS supervisor, who in turn advised USI that this
legal material was authorized. In an email yesterday, Clark’s former counsel confirmed that, at
her instruction, her paralegal “did mail items to Mr. Clark.” Indeed, during Clark’s time at the
Medical Center, Clark received a significant volume of materials from his then-counsel, totaling
thousands of pages. And more broadly, from fall 2021 to May 2022, Clark’s then-counsel worked
closely with the Government and USMS to get various items to Clark (e.g., legal materials, a white
noise machine, reading glasses, pens, notepads, redwelds, etc.).4
Second, Clark’s July 2022 letter is believed to be the first time that Clark, or his counsel,
have raised this mail-related complaint with the Government—notwithstanding the fact that, as
noted, Clark had frequent access to both his counsel and his consular representatives. And both
entities—counsel and consular officials—have visited Clark in person and spoken with him by
phone. Had Clark raised this topic at any point with the Government, the parties could have
worked together and with the USMS to promptly accommodate any request of Clark’s, while also
ensuring any appropriate security measures, such as USMS screening (where warranted) to prevent
the transport of contraband.
Alleged Issues Stemming from Clark’s Recent Transfer to a Nursing Home: In mid-June
2022, Clark was transferred from the Medical Center to the Nursing Home. Several of Clark’s
allegations relate to, or stem from, this transfer.
By way of context, from approximately late October 2021 until mid-June 2022, Clark was
housed at the Medical Center. During that time, Clark accumulated a host of items in his room at
the Medical Center, including an estimated 20 books; various large 3-ring metal binders, which
reportedly contained legal materials; a pen; notepads; a white noise machine; a three-hole puncher;
clothing; and food. Various entities were involved in providing, procuring, approving,
coordinating, and/or supervising these items—including then-defense counsel, the Government,
4 Nor was Clark shy about using the mail when he wished to get additional items. For instance,
the medical facilities (where Clark was housed) received packages from Amazon.com addressed
to Clark—which were unauthorized—including packages containing hangers; coffee, creamer,
and Equal sweetener; and a power strip with an extension cord, which constituted a fire hazard.
Case 1:15-cr-00866-SHS Document 153 Filed 07/29/22 Page 7 of 10
Hon. Sidney H. Stein Page 8
United States District Judge July 29, 2022
USMS, USI, and the Medical Center. One notable exception was the BOP. As noted above, Clark
was principally in USMS custody following his injury in October 2021, so the BOP was not
involved in (1) the day-to-day guarding of Clark at the Medical Center, or (2) the process of
determining which items Clark was authorized to possess. Accordingly, we do not believe that
the BOP was advised of the ever-growing list of USMS-approved accommodations for Clark.5
Nonetheless, the BOP handled the transport of Clark from the Medical Center to the
Nursing Home.6 This transport occurred late in the day on June 13, 2022. When BOP employees
arrived at the Medical Center to pick up Clark, they were extremely surprised to see various items
in his room at the Medical Center; such items are not approved in a BOP setting. Ultimately, after
some back and forth, BOP placed Clark’s belongings in bags, transported Clark and his belongings
to the Nursing Home, and brought his belongings into his room at the Nursing Home. Clark’s
room at the Nursing Home was a single room, unlike the “double” room he had had at the Medical
Center. As a result, Clark’s volume of possessions created a fire hazard and tripping hazard when
they were all placed in his room at the Nursing Home; his possessions also included items that are
not approved in a BOP setting. Accordingly, the BOP employees who transported Clark to the
Nursing Home had concerns and consulted a BOP colleague (“BOP Employee-1”) who happened
to be at the Nursing Home that day guarding a different inmate. Ultimately, given BOP’s policies
and concerns, a determination was made to leave some of Clark’s items in his room, but to remove
other items and store them in the Nursing Home’s basement, pending the receipt of more
information from USMS as to whether these items were in fact authorized.
The next morning, BOP Employee-1 emailed USMS to ascertain whether USMS had
approved all of Clark’s possessions. Specifically, BOP Employee-1 wrote, in part, that an inmate:
has accumulated a lot of civilian clothing, books , electric clippers for
shaving and other items that poses a risk to security. However, the inmate
informed Bop staff members, while being transported to the nursing center
that the items was approved by your office and mailed to the hospital by
his attorney. Our office is seeking conformation as to the validly of the
inmate statement as we want to make the necessary preparation to inventory
the property and have the inmate mail it home. Thank you for your time
and consideration in the matter of great security concern.
Unfortunately, BOP Employee-1’s email contained the wrong Marshals Number for Clark (and
thus the wrong inmate name)—the Marshals Number was off by one digit. In response, USMS
provided information about the named inmate (not Clark). As a result, the BOP was not aware
5 At the parties’ request, the BOP was involved on one occasion in one extremely limited respect:
In May 2022, the BOP procured additional clothing for Clark, which was transported to the
Medical Center (e.g., a jumpsuit, socks, underwear, a t-shirt, and bus shoes). In addition, following
the submission of Clark’s recent letter, the BOP was also involved in retrieving Clark’s laptop
computer.
6 Clark was cleared to be transferred after the Medical Center’s medical staff conferred with the
BOP’s medical staff.
Case 1:15-cr-00866-SHS Document 153 Filed 07/29/22 Page 8 of 10
Hon. Sidney H. Stein Page 9
United States District Judge July 29, 2022
that USMS had, in fact, authorized Clark’s belongings. Later that week, another BOP employee
pointed out that the email contained “the wrong inmates number” and provided BOP Employee-1
with “the correct name and [Marshals] number,” but this information appears not to have been
followed up on. Subsequently, USI told a USMS supervisor that BOP had separated Clark from
some of his belongings; this USMS supervisor appears not to have followed up, as he viewed it as
BOP’s responsibility. Thus, it appears that certain items—which were approved by USMS while
Clark was housed at the Medical Center—became separated from Clark at the Nursing Home due
to a convergence of circumstances, including: (1) Clark’s transfer from the Medical Center to the
Nursing Home; (2) the unusual volume and nature of the items Clark accumulated at the Medical
Center; (3) the considerably smaller size of Clark’s room at the Nursing Home; (4) the involvement
of another law enforcement agency (the BOP), which had different procedures than the USMS;
and (5) an unfortunate typographical or clerical error regarding Clark’s Marshals Number.
The Government was not advised of any of the issues related to the removal of the items
from Clark’s room until Clark filed his letter on ECF four weeks later on July 11, 2022. (See Dkt.
147). In his letter, Clark appears to allege that, following his transfer to the Nursing Home, he did
not have access to a standard pen (as opposed to a floppy jail pen), paper, his legal materials, or
his white noise machine. In his letter, Clark also requested his previously supplied laptop computer
(containing discovery), which is believed to be the first time such a request was made to the
Government relating to his laptop since he left the MDC in October 2021.
Since receiving Clark’s letter, the Government has worked with USMS, USI, BOP, and the
Nursing Home to remedy any unintended issues occasioned by his transport to the Nursing Home.
In light of these efforts, Clark obtained access at the Nursing Home, 24 hours per day, to: notepads,
a standard pen (subject to the qualifications set forth in our prior letter (see Dkt. 150)), his
previously supplied laptop computer, and those legal materials that have been located to date. As
to the final point, thus far, USI and the Nursing Home have unfortunately been unable to locate
the bags with Clark’s possessions that were stored in the basement of the Nursing Home; these
bags are believed to contain certain materials that Clark has described as legal materials, as well
as his white noise machine. USI’s efforts to locate these materials have been extensive. The task
of locating these materials may have been somewhat complicated by the facts that: (1) when non-
defendant patients at the Nursing Home store possessions in the basement, they typically store
luggage, such as a suitcase or duffel bag; (2) when Clark’s items were moved to the basement, by
contrast, they were stored in large black trash bags—and thus did not look like typical patient
property; (3) there was a leak in the basement of the Nursing Home at some point after Clark
arrived, which required cleanup; (4) construction is ongoing in the Nursing Home, which has led
to the presence of several contractors, and associated trash, in the basement, where Clark’s items
were being stored; and (5) Ms. Carvlin’s departure from the case has dramatically changed the
flow of communication between the parties—and thus the Government’s ability to learn about,
and address, any potential complaints in (or near) real time. In sum, at present, despite substantial
efforts to locate these materials, certain of Clark’s materials, including some of what he has
described as legal materials, may have been accidentally discarded or otherwise misplaced by a
construction contractor or a Nursing Home employee.
The Government is fully committed to helping reunite the defendant with the remainder of
his possessions—and/or to helping recreate the legal materials he had in his possession previously.
Case 1:15-cr-00866-SHS Document 153 Filed 07/29/22 Page 9 of 10
Hon. Sidney H. Stein Page 10
United States District Judge July 29, 2022
In that regard, Clark informed USI that his legal materials (i.e., the large, 3-ring metal binders)
came from his former counsel, so the Government contacted Clark’s counsel—both former and
current. Clark’s former counsel confirmed that she retained a full electronic copy of all such
materials, and she will work with stand-by counsel to promptly provide a copy for Clark of any
materials he still desires. In addition, in consultation with USMS, the Government informed
Clark’s stand-by counsel that he could bring a new white noise machine to Clark at the Nursing
Home at any time.
Please let us know if any further information would be useful at this time.
Respectfully submitted,
DAMIAN WILLIAMS
United States Attorney for the
Southern District of New York
By: _____________________________
Michael D. Neff
Assistant United States Attorney
