OPINION AND ORDER Defendant Michael Cohen pleaded guilty to evading income taxes, lying to banks and Congress, and violating campaign finance laws. See ECF No. 23.1 On December 12, 2018, citing this “veritable smorgasbord of fraudulent conduct,” ECF No. 31, at 31, the Honorable William H. Pauley sentenced Cohen principally to thirty-six months’ imprisonment, followed by three years’ supervised release. See ECF No. 29; see also 18-CR-850, ECF No. 16. Since that time, Cohen has applied multiple times for a reduction of his sentence, each time without success. First, in December 2019, Cohen moved for a reduction of his term of imprisonment pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. See ECF No. 51. Judge Pauley denied that motion in March 2020. See ECF No. 72. Between July 2022 and May 2023, after the case was reassigned to the undersigned (due to the death of Judge Pauley), Cohen filed three motions for early termination of his term of supervised release (which is due to expire in November of this year). See ECF Nos. 77, 81, 84. The Court denied all three. See ECF Nos. 80, 83, 87. In this Opinion, the Court turns to a fourth motion for early termination of Cohen’s supervised release and the question of whether sanctions are warranted for that motion’s citation to three cases that do not exist. BACKGROUND The relevant background begins with the Court’s denial of Cohen’s third motion for early termination. In opposing that motion, the Government alerted the Court to statements that Cohen had made in a then-recent book and on television. Specifically, “Cohen falsely wrote in a book he authored that he ‘did not engage in tax fraud,’ that the tax charges were ‘all 100 percent inaccurate,’ and that he was ‘threatened’ by prosecutors to plead guilty.” ECF No. 86, at 3 (quoting MICHAEL COHEN, REVENGE 54 (2022)). And in an “attempt to distance himself from his guilty plea to making false statements to a financial institution about tax medallion liabilities, Cohen stated on television, ‘first and foremost, there was no fraud in the medallions, I don’t know even what he’s talking about.’” Id. (citation omitted) (quoting ‘Panic’: Trump melting down over imminent ‘arrest’ says star witness Cohen, MSNBC: THE BEAT WITH ARI MELBER (Mar. 20, 2023), https://shorturl.at/cvDI8). The Court denied Cohen’s motion “substantially for the reasons set forth in the Government’s letter” and singled out the statements from Cohen’s book and television appearance. ECF No. 87, at 4 (endorsement). These statements, the Court stated, “suggest that a reduction of Defendant’s supervised release term would not serve the purposes [of sentencing] incorporated by reference in 18 U.S.C. §3583(e)” — the statute governing termination of supervised release — “including deterrence, rehabilitation, or proportionality.” Id. (citing United States v. Lussier, 104 F.3d 32, 35 (2d Cir. 1997)). Undeterred, Cohen — through his counsel of record, David M. Schwartz — filed yet another motion seeking early termination of supervised release on November 29, 2023. See ECF No. 88 (“Def.’s Motion”). In his motion, Schwartz argued that there had “been a substantial change in circumstances” since the Court’s most recent denial, namely Cohen’s testimony “for two straight days in the case of the State of New York v. Donald J. Trump.” Id. at 1. Schwartz asserted that Cohen had “endured two days of grueling cross examination” and that his testimony had “been widely lauded and publicized.” Id. Cohen’s “willingness to come forward and provide truthful accounts of his experiences,” Schwartz argued, “demonstrates an exceptional level of remorse and a commitment to upholding the law that cannot be denied by this Court or the United States Attorney General’s [sic] Office.” Id. In support of his motion, Schwartz cited and described three “examples” of decisions granting early termination of supervised release that were allegedly affirmed by the Second Circuit. See id. at 2-3 (citing United States v. Figueroa-Florez, 64 F.4th 223 (2d Cir. 2022); United States v. Ortiz (No. 21-3391), 2022 WL 4424741 (2d Cir. Oct. 11, 2022); and United States v. Amato, 2022 WL 1669877 (2d Cir. May 10, 2022)). There was only one problem: The cases do not exist. Although the Government failed to point that fact out in its opposition to Cohen’s motion, see ECF No. 90 (“Gov’t Opp’n”), E. Danya Perry — who entered a notice of appearance on Cohen’s behalf following the Government’s submission, see ECF No. 91 — disclosed in a reply that she had been “unable to verify” the citations in Schwartz’s filing. ECF No. 95 (“Def.’s Reply”), at 3 n.6. On December 12, 2023, the Court entered an Order to Show Cause directing Schwartz to show cause in writing “why he should not be sanctioned pursuant to (1) Rule 11(b)(2) & (c) of the Federal Rules of Civil Procedure, (2) 28 U.S.C. §1927, and (3) the inherent power of the Court for citing non-existent cases to the Court.” ECF No. 96, at 2. The Court directed that Schwartz provide “a thorough explanation of how the motion came to cite cases that do not exist and what role, if any, Mr. Cohen played in drafting or reviewing the motion before it was filed.” Id. The Court reserved judgment on the motion itself. See id. Schwartz (aided by his own counsel) and Cohen (aided by Perry) both responded to the Court’s Order to Show Cause. See ECF Nos. 103-05. With one exception discussed below, they tell the same basic story. In early November 2023, Schwartz sent a draft of what would become the November 29, 2023 motion to Cohen. See Schwartz Decl. 4; Cohen Decl. 12.2 Cohen asked Perry (who had not yet entered an appearance in this case) to provide feedback on the draft, which she did. Schwartz Decl.
5-7; Cohen Decl. 12. One comment, which Cohen passed along to Schwartz, was that the motion should cite a few cases granting early termination. Schwartz Decl. 6; ECF No. 106 (“Schwartz Reply Decl.”), 9; Cohen Decl. 13. Schwartz adopted what he understood to be Perry’s suggestions and sent subsequent drafts back to Cohen. See Schwartz Decl. 8. On November 25, 2023, Cohen then sent three emails to Schwartz with the cases in question and summaries of the cases. See id. 9; Cohen Decl. 15. Cohen had obtained the cases and summaries from Google Bard, which he “did not realize…was a generative text service that, like Chat-GPT, could show citations and descriptions that looked real but actually were not. Instead, [he had] understood it to be a super-charged search engine….” Cohen Decl. 20. According to Cohen, he did not “have access to Westlaw or other standard resources for confirming the details of cases” and “trusted Mr. Schwartz and his team to vet [his] suggested additions before incorporating them” into what became the motion. Id. That trust proved unfounded. Although Cohen’s November 25, 2023 emails made no reference to Perry, Schwartz “believed” that the cases “had been found by Ms. Perry” given the earlier back and forth. Schwartz Decl. 9; see Schwartz Reply Decl. 2. “[B]ecause of Ms. Perry’s reputation” as “a renowned and skilled trial lawyer,” Schwartz “did not independently review the cases.” Schwartz Decl.
