More SDNY Discovery Violations As
Facetime Video Comes Late and Classified In
Hossain
By Matthew
Russell Lee, Thread,
Patreon
Song
SDNY COURTHOUSE,
Nov 17 – Iranian banker
Ali Sadr Hashemi Nejad had
been on trial, charged with
money laundering and violating
US sanctions including through
a Venezuelan infrastructure
project. It has devolved into
a show of discovery violations
by the US Attorney's Office,
now echoed in another case, US
v. Delowar
Hossain, 19
Cr. 606 (SHS)
On March
16 in the Nejad case, after an
unprecedented decision to
proceed with ten jurors in the
jury room and an eleventh at
home, deliberating by video
conference or FaceTime, he was
found guilty on most charges.
Live tweeted thread here.
(Facetime features in Hossein,
below)
Late on
Friday, June 5 this news dump:
"Re: United States v. Ali Sadr
Hashemi Nejadin, 18 Cr. 224
(AJN) Dear Judge Nathan:
The Government respectfully
submits the enclosed
application for an order of
nolle prosequi of the
Indictments filed in this case
against Ali Sadr Hashemi
Nejadin (“Sadr”) and Bahram
Karimi. Respectfully
submitted, /s/ GEOFFREY S.
BERMAN United States
Attorney"
Then on
July 17, Judge Nathan issued
an Order here,
followed on September 16 a
42-page order
dissecting US Attorney's
Office misdeeds.
And here
are more: "United States v.
Delowar Hossain, 19 Cr. 606
(SHS) Dear Judge Stein:
The defense writes, with the
consent of the government,
requesting an adjournment
of at least 90 days of the
December 15, 2020 trial date
in the above-captioned case
and the
resetting of all pre-trial
deadlines, including the
upcoming November 16, 2020
deadline for
in limine motions, proposed
voir dire, and jury
instructions.
Over the past few days, and
starting on November 5, 2020,
the government began
producing additional Rule 16
materials (nearly 450 files of
electronic discovery) the bulk
of
which were not previously
disclosed to the defense."
Now on November
17, the US Attorney's Office's
David Denton has written to
Judge Stein: "In the course of
preparing for trial, the
Government discovered that
these representations were
inaccurate. The Government
sincerely regrets these
errors, and has been working
diligently to correct them. In
particular, during the week of
November 2, 2020, in the
course of preparing 18 U.S.C.
§ 3500 material for two
confidential sources (“CS-1”
and “CS-2” and, together, the
“CSes”), the Government
identified additional
screenshots, or photographs,
of messages between the
defendant and the CSes which
had been attached to reports
reflecting the CSes’
statements to law enforcement
agents handling this case.
When the Government realized
that these messages had never
been produced, the Government
promptly produced them to the
defense on November 8, 1
advising the defense
specifically that the majority
of the messages had never
before been produced in Rule
16 discovery, and that the
Government was taking
immediate corrective steps to
ensure that no additional
discoverable materials had
been overlooked. Over the next
several days, the Government
undertook significant efforts
to identify and produce any
and all additional
discoverable information.
These steps are described in
more detail below. More
immediately, in light of these
developments, the Government
agreed with the defense that
an adjournment of the December
15, 2020 trial was
appropriate, both because the
defense was entitled to
additional time to prepare for
trial in light of this new
material, and because the
Government needed time to
ensure that no additional
discoverable material existed
which it had failed to
produce. The Government
discussed these matters with
defense counsel during several
phone calls on November 10,
2020, and advised the defense
that the Government planned to
write the Court as soon as the
Government was in a position
to provide a full accounting
of the situation. Given the
pending motions in limine
deadline, however, the defense
proposed filing a letter with
the Court that same day which
would describe the late
production of Rule 16 material
and its impact on defense
trial preparations, and
request the trial adjournment
on consent. The Government
agreed with this approach, and
the defense filed its joint
letter that same day. (Dkt.
62.) In the meantime, the
Government continued to work
diligently to identify
potential sources of
additional discoverable
material and, where these
sources have been identified,
to personally review and
produce such materials to the
defense as quickly as
possible. During this past
week, in addition to the
materials in the possession of
the U.S. Attorney’s Office,
the Government—and
specifically, the two
undersigned—has reviewed (1)
all 656 entries and
attachments in the FBI case
file and subfiles pertaining
to this matter, (2) all 549
entries and attachments in the
FBI case file and subfiles
pertaining to a related
ongoing investigation, (3) all
of the substantive reports in
the source files for the two
CSes for the entirety of their
affiliations with the FBI,2
(4) all of the reports and
accompanying recordings made
by an undercover officer of
the New York City Police
Department (the “UC”) in
connection with the
investigation of the
defendant, (5) the contents of
the two cell phones used by
the CSes during their
interactions with the
defendant in this case, (6)
the contents of the cell phone
used by the UC during the UC’s
interactions with the
defendant (significant parts
of which existed in a
different form which had
previously been produced to
the defense), (7) the laptops
of the FBI agents assigned to
this case, and (8) text
messages exchanged between the
FBI agents assigned to this
case and the CSes. Based on
that review, the Government
identified additional
discoverable materials that it
has been producing to the
defense on a rolling basis.
Specifically, the Government
identified (1) 5 videos taken
of the CSes’ phones showing a
rolling scroll of text
messages between the CSes
1 The Government
initially produced this
information on an Attorney’s
Eyes Only basis because, in
its unredacted form, it
includes substantial personal
identifying information for
the CSes and other
individuals. The Government is
working expeditiously to
produce appropriately redacted
copies.
2 Both CSes
have been and/or are still
involved in other FBI
investigations.
and the
defendant; these videos appear
largely duplicative of the
screenshots which were
produced on November 8, 2020,
but the Government produced
the videos on November 9, 2020
in an abundance of caution;
(2) 2 CCTV videos collected
during the investigation that
depict the defendant; (3) 4
additional text messages
involving the UC and the
defendant; (4) approximately
80 text messages involving
CS-2 and the defendant
retrieved from the extraction
of CS-2’s phone; and (5) pen
register data for the
defendant’s phone number
(which the Government
anticipates will be largely,
if not entirely, duplicative
of previously produced
subpoena returns for that
phone number, but which the
Government has nevertheless
also produced in an abundance
of caution). All of these
materials were produced on
November 12, 2020. The
Government also identified
additional classified
materials it seeks to produce
in discovery, and which the
FBI is in the process of
declassifying for production
to the defendant as soon as
possible. These materials
include (1) 8 aerial
surveillance recordings and
accompanying reports, (2) 2
video surveillance recordings
and accompanying reports, (3)
1 Facetime video involving the
defendant, which was recorded
by one of the CSes, and its
accompanying report, and (4)
approximately 55 other FBI
reports which either had not
previously been produced or
which had been produced
without the accompanying
attachments (the majority of
which merely document the
collection of audio recordings
between the defendant and the
CSes that were already
produced in discovery). Based
on this review, the Government
believes that it is now in
compliance with its Brady and
Rule 16 obligations (except
for the currently classified
materials the Government
intends to produce
imminently)." Except.
In Nejad
many of the US Attorney's
Office's responses have been
under seal. So on October 30
Inner City Press filed a
timely application to
intervene and unseal, below
(and now docketed).
On
November 13, Nejad himself
filed a letter under seal -
while asking Judge Nathan to
unseal it: "Re: United States
v. Ali Sadr Hashemi Nejad,
Case No. 18-cr-224 (AJN) Dear
Judge Nathan: We have today
submitted to the Court, under
seal, Defendant Ali Sadr
Hashemi Nejad’s letter
responding to the government’s
submissions in response to
this Court’s September 16,
2020 Order. See Dkt. 379, at
34. Sadr has submitted this
letter under seal because it
discusses declarations and
exhibits that the government
has requested remain under
seal. For the reasons stated
in his October 30, 2020 letter
opposing the government’s
sealing request (Dkt. 389),
Sadr respectfully requests
that the Court unseal Sadr’s
letter of today in its
entirety, along with the
government’s declarations and
exhibits."
From Inner City
Press' October 30 filing: "the
irregularities in the U.S.
Attorney's Office's disclosure
and other practices in this
case - and in other cases
Inner City Press is covering
in the SDNY, some cited below
- militate against shield
these judicial documents and
those government employees
involved from public scrutiny
and
accountability.
In
response to your September 16
order, the US Attorney's
Office submitted some 1,400
pages on a disk, all under
seal. On October 23 redacted
cover letter(s) appeared in
the docket, with lines like
"maintain under seal a letter
[REDACTED]," and "based on the
existing sealing Order in this
case related to
[REDACTED.]"
Another
cover email, referencing the
submission of a "disk with the
exhibits and other responsive
communications" merely states,
without argument, that it is a
"request that these materials
be filed under seal."
As the
Court surely knows, similar
issues have arisen in US v.
Ahuja and Shor and numerous
other, lower profile cases. As
simply one recent (Oct 28)
example, it emerged in
19-cr-144 (AHK) that the US
Attorney's Office withheld six
terabytes of discovery until
17 months into that case,
after one of the defendants
pled guilty.
Only yesterday,
October 29, a superseding
indictment of a UN staff
charged with drugging and
raping victims in Iraq and in
the US was docketed on delay,
including the arrest and
presentment being disclosed
only after it had happened,
in US v.
Elkorany, 20-cr-437
(NRB).
As the
Court is aware, the public and
the press have a presumptive
First Amendment and common law
right of access to criminal
proceedings and records. See
Press Enterprise Co. v.
Superior Court of California,
464 U.S. 501, 508 (1984). The
presumption of openness can
only be overcome if “specific,
on the record findings are
made demonstrating that
closure is essential to
preserve higher values and is
narrowly tailored to serve
that interest.”
Press–Enterprise Co. v.
Superior Court, 478 U.S. 1,
13-14 (1986) Non-parties
such as Inner City Press and
myself have standing to
intervene in criminal
proceedings to assert the
public’s right of access.
United States v. Aref, 533
F.3d 72, 81 (2d Cir. 2008)...
Inner City
Press is a proper intervenor,
which has covered the
underlying case, see,
e.g., on the late day of
trial, this.
Here, the
requested sealing(s) and
withholdings go entirety go
beyond those requested even in
the CIA trial before Judge
Crotty, US v. Schulte, 17 Cr.
548.
In that case, Inner City Press
vindicated the public's right
to know, in the docket, see this
Inner City
Press after that got even more
sensitive filings unsealed in
a North Korea sanctions case
before Judge Castel, US v.
Griffith, 20-cr-15 (PKC),
Docket No. 33 (LETTER by EMAIL
as to Virgil Griffith
addressed to Judge P. Kevin
Castel from Matthew Russell
Lee, Inner City Press, dated
5/18/2020, re: Press Access to
documents in US v. Griffith,
20-cr-15), 40 (order to
unseal) and 41 unsealed
filings). See also Inner City
Press' May 9, 2020, filing to
this Court for openness in US
v. Randall, 19-cr-131,
No.
343.
And see Judge Furman's Order
in US v. Avenatti, 19-cr-374,
docket no. 85, granting
application, here.
The U.S. Supreme Court has
recognized that reporting by
the news media allows members
of the public to monitor the
criminal justice system
without attending proceedings
in person. Richmond
Newspapers, Inc. v Virginia,
448 U.S. at 572-73
(1980). By attending and
reporting on court
proceedings, members of the
press "function[] as
surrogates for the public."
Id. at 573.
A motion to intervene is the
appropriate device to assert
the right of access, the
Second Circuit has recognized
for example in US v. King, 140
F.3d 76, 78 (2d Cir.
1998).
The documents including
electronic documents at issue
here should not be sealed and
should be made available,
forthwith. ("Each passing day
[that access is denied] may
constitute a separate and
cognizable infringement of the
1st Amendment," Nebraska Press
Association v. Stuart, 427
U.S. 539, 580 (1976)).
Please confirm receipt &
docket this timely responsive
filing, making Inner City
Press an Interested Party.
Thank you. Respectfully
submitted, /s/
Matthew Russell Lee, Esq.,
Inner City Press
Back in March:
Judge Nathan: "The jury has
reached a verdict.... The
juror on video conference will
stay on until he hears from me
further." Jury entering! Judge
Nathan: "I'll ask the
foreperson. Has the jury asked
a unanimous verdict?" Yes.
Judge
Nathan: Count 1, how do you
find the defendant, with
conspiring to defraud the US?
Guilty. Count 2: Guilty.
Judge Nathan
(after sidebar) "On Count 3,
bank fraud, how do you find?
Guilty. Under 1344, prong 1,
neither (?) Count 4: bank
fraud conspiracy: Under
1344, prong 1, neither (?)
Under 1344, prong 2, guilty
Judge Nathan:
Count 5: Guilty. Count 6,
money laundering conspiracy:
Not guilty. Now polling
jurors: one? 2? [soon the
virtual juror] Let me confirm
the verdict with Juror Number
7... I have confirmed it is
his verdict. I will dismiss
the jury.
After
Judge Nathan had declined to
sent Sadr to jail pending
sentencing but instead
converted him to home
detention, Inner City Press
rushed out to do a Periscope
video live stream (here)
and try to ask Sadr a
question. His lawyers left in
a yellow cab, then he left.
Inner City Press asked, Are
you going to appeal? He
answered softly, Of course.
Then he too got in a yellow
cab.
On March
16 amid the Coronavirus
COVID-19 crisis, jury
deliberations ran into a
problem. SDNY Judge Nathan
proposed proceeding with ten
jurors in the jury room and
one connected from outside by
video.
Assistant
US Attorney Michael Krause
objected. But Judge Nathan
said there are extraordinary
circumstances and she would
proceed thusly. Inner City
Press live tweeted it all:
thread here.
More on Patreon here.
Ali Sadr is
represented by lawyer Reid
Weingarten of Steptoe &
Johnson and, on November 25 as
reported
by Inner City Press by Brian
M. Heberlig
before U.S. District Court for
the Southern District of New
York Judge Alison J. Nathan.
On Sunday,
March 8 [alongside this song]
the US Attorney Office which
closed its
case on March
9 past
9 pm submitted a letter,
below.
On March 12
in closing arguments, this
happened: As jury charge
continues: Judge Nathan has
just deployed the old saw
about circumstantial evidence,
that if people come into a
windowless courtroom with wet
umbrella, jurors are free to
conclude it is raining
outside.
But what about
Iran sanctions?
AUSA Krause: The
defendant knew what he was
doing violated US sanctions
against Iran. The defendant is
charged with six felonies.
Mohammad Sadr was the
beneficiary of the payments.
...
It's good to have
money, in essence. This is not
how lower income defendants
are often treated in the SDNY.
The case is USA v.
Nejad, 18-cr-00224
(Nathan). More on Patreon here
O
***
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