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In Sex Trafficking Case Cut by COVID Now SDNY Belatedly Provides Prison Calls & Emails

By Matthew Russell Lee, Patreon Thread
BBC - Decrypt - LightRead - Honduras - Source

SDNY COURTHOUSE, Jan 1  – In the sex trafficking trial of US v. Carl Andrews that Inner City Press has been reporting on despite a partially sealed courtroom and US Attorney withholding of exhibits, the defense on March 14 asked for and got a stay and then end of the trial.

The reason? Coronavirus COVID-19.

  For that re-trial one of the US Attorney's Office's witnesses is blamed for putting the jury, court staff, and the Press at risk (Inner City Press witnessed and reported on her March 12 testimony, here), see below.

 Back on November 29 Andrews counsel  detailed problems with legal calls and access to discovery in the MCC.

On November 30 Judge Engelmayer held another proceeding, and Inner City Press again covered it. Judge Engelmayer acknowledged that Andrews' case will probably be leaving the SDNY, and ordered that Defendant Justin Rivera, who was again produced late, should get three hours a day with an "air-gapped" lap top.

On December 7, another proceeding was held. While the laptop is to be giving on December 8, now the SDNY's Standing Order of December 1 suspending most in person proceeding has resulted in Rivera not being allowed to come to the cell block on Fridays and meet with his lawyers.

And as to Carl Andrews, now the docket says Nolle Prosequi. See you in the Eastern District?

   In the Southern District, yet more discovery irregularities, belatedly disclosed on New Years Eve: "Re: United States v. Justin Rivera and Dwayne Conley, 19 Cr. 131 (PAE) Dear Judge Engelmayer: We write to inform the Court and the defendants that the U.S. Attorney’s Office for the Southern District of New York (“USAO”) learned for the first time two days ago, December 29, 2020, that the Federal Bureau of Investigation (“FBI”) is in possession of certain phone calls and emails (the “BOP Materials”) made, sent, or received by (i) defendants Justin Rivera and Dwayne Conley while detained at the New York Metropolitan Correctional Center (“MCC”); and (ii) other defendants charged in this case while in custody at the MCC or Metropolitan Detention Center (“MDC”), including three defendants (Lorenzo Randall, Ricarda Diamond, and Brian Smith, respectively) whose past statements (e.g., statements in text messages made contemporaneously with the charged conduct) may be introduced at trial for the truth of the matter asserted. While the Government previously produced other prison calls and emails to the defendants, the majority of the BOP Materials have not previously been produced to the defendants.1 The USAO understands that the BOP Materials were made, sent, or received between in or about February 2019 and December 2020, 2 and that they include: 1 As described below, the USAO has produced certain prison emails to the defendants, which may overlap with the BOP Materials in the possession of the FBI. The USAO has not yet determined to what extent its previous production overlaps with the BOP Materials first identified this week. 2 For some individuals, the date range of calls and emails included in the BOP Materials is shorter.

For Mr. Rivera, approximately 266 recorded phone calls and 6,760 pages of emails;3 • For Mr. Conley, approximately 660 recorded phone calls and 7,679 pages of emails;4 • For Mr. Randall, approximately 600 recorded phone calls and 19,436 pages of emails; • For Ms. Diamond, approximately 27 recorded phone calls and no pages of emails; and • For Mr. Smith, approximately 177 recorded phone calls and 4,382 pages of emails. As the USAO stated at prior Court conferences, the USAO was aware in June 2019 that the FBI obtained and had within its possession phone calls and copies of emails made, sent, or received by certain defendants through in or about June 2019 (the “Prior BOP Materials”). The USAO previously produced prison calls and emails, including the Prior BOP Materials, to the defendants in individual discovery. Based on communications with the FBI, the USAO believed that the FBI thereafter ceased to obtain prison calls or emails absent the USAO specifically requesting such materials. 5 This understanding was, however, apparently incorrect. On December 29, 2020, the USAO learned that the FBI had, in fact, continued to collect certain prison calls and emails and was thus in possession of the BOP Materials. The Government is in the process of investigating how this significant misunderstanding between the USAO and the FBI concerning the FBI’s possession of the BOP Materials came to be. 3 The USAO previously obtained and produced to Mr. Rivera’s counsel emails that were sent or received by Mr. Rivera from the MCC between May 4, 2019 and October 18, 2019, and which totaled approximately 2,317 pages of emails. 4 The USAO previously obtained and produced to Mr. Conley’s counsel emails that were sent or received by Mr. Conley from the MCC between June 20, 2019 and September 3, 2019, as well as between September 17, 2019 and September 23, 2019, all of which totaled approximately 5,537 pages. The USAO has also recently produced to defense counsel for both defendants as part of global discovery a small subset of the emails produced in individual discovery to Mr. Conley’s counsel that Mr. Conley sent and received between September 17, 2019, and September 19, 2019. Those particular emails relate to allegations of witness tampering against Mr. Conley, as charged in indictment number S5 19 Cr. 131 (PAE). 5 In September 2019, at the USAO’s request, the FBI obtained certain emails from BOP relating to Conley’s witness tampering. Those emails were previously produced to the defendants.

 In the last 48 hours, the Government has identified and begun collecting from the FBI the BOP Materials. Pursuant to the Government’s obligations under Rule 16(a) of the Federal Rules of Criminal Procedure, the Government will produce forthwith: (i) to counsel for Mr. Rivera, those BOP Materials made, sent, or received by Mr. Rivera; and (ii) to counsel for Mr. Conley, those BOP Materials made, sent, or received by Mr. Conley. On a parallel track, the Government will expeditiously review all BOP Materials and disclose on a rolling basis to defense counsel any relevant information covered by Rule 16(a), Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, and Giglio v. United States, 405 U.S. 150, 154 (1972), and its progeny, as such information is identified. The USAO does not intend to use, or otherwise rely on, any calls or emails not previously produced in discovery." Watch this site.

   Here was the filing about COVID: "Re: United States v. Randall et al., No. 19 Cr. 131 (PAE) Dear Judge Engelmayer: At the outset of the pandemic, which was dominating headlines even then, the government's witness Chitra Raghavan flouted an order barring people from the courthouse if they were exhibiting certain symptoms, which included coughing. During her testimony, Dr. Raghavan's coughing fits were alarming. Perhaps sensing the unease of the trial participants, Dr. Raghavan offered a pretext – her allergy to dust and carpeting – was the reason for her coughing and she continued to testify – and cough. Emails that were later produced by the government revealed that Dr. Raghavan suspected that she had COVID-19 at the time of her testimony. In a letter motion filed under seal on September 25, 2020, the government asserts that this patently reckless and inexplicable conduct should be out of bounds on cross-examination. Proffer notes recently supplied by the government pursuant to the Jencks Act reflect that Dr. Raghavan blatantly violated the Southern District’s Standing Order prohibiting people with specifically enumerated symptoms, including coughing, from entering the courthouse. It is clear that Dr. Raghavan misled the Court. Dr. Raghavan’s noncompliance with the Court’s order put the lives of the trial participants and the jurors in jeopardy. More than a fair inference can be drawn that Dr. Raghavan misled your Honor through counsel for the government and ultimately, the jury, while under oath." Full letter on Patreon here.

 On October 28, two co-defendants to have their own trial four weeks after Andrews were set for a pre-trial conference. But while Dwayne Conley was there, Justin Rivera was absent. It was said he is in the MCC's Special Housing Unit or SHU. Finally 45 minutes later, he was on the line. Judge Engelmayer expressed his displeasure, and the docket says "defendant Rivera was not produced."

On November Judge Engelmayer held another proceeding, on Rivera's access to discovery. The Assistant US Attorney said Rivera can have access to the hard copy materials provided to his counsel at the SHU, and an hour daily in the law library, and in-person meeting with his counsel at 500 Pearl Street.

 The parallel case of two co-defendants stood to be delayed, as least as to one of them: "Re: United States v. Dwayne Conley  Dkt. No. 19-Cr-131 (PAE) Dear Judge Engelmayer: On behalf of Mr. Conley, I request that the trial be adjourned to January, 2021. The Government does not oppose an adjournment to the first quarter of 2021. We have conferred with counsel for Mr. Rivera, and have been informed that they are not in a position to consent to our request given Mr. Rivera's desire to exercise his right to a speedy trial."  Inner City Press will stay on the case

Inner City Press' opposition: "Re: Press Access to US v. Andrews, 19 Cr. 131, including actual same day access to transcripts and exhibits, and press access to the courtroom Dear Judge Engelmayer:    This concerns the request of the US Attorney's Office to "partially" close your courtroom to the press and public in the above-caption case. The request was dated March 6, but Inner City Press only became aware of the request this morning, and immediately opposes it in the same fashion - email to Chambers and deputy to be filed inthe docket and on ECF - as it did in January 2020 to your colleague Judge Paul A. Crotty on a near-similar request by the USAO. 

This timely opposition is filed on behalf ofInner City Press and in my personal capacity. The  access restrictions are unacceptable, and go beyond those requested even in the Central Intelligence Agency trial before Judge Crotty, US v. Schulte, 17 Cr. 548 (PAC).   In that case, the AUSO proposed allowing thepress into the courtroom during the closure, and provided for a continuous live video feed of the proceedings, with camera turned away for certain witnesses,allow for live tweeting of the proceeding as Inner City Press has done. The AUSO also provided exhibits, and in some cases transcripts, in an online file for the press.     Here, AUSA Wolf's letter does not propose any press access to the courtroom during the proposed "partial" closures.Live tweeting would not, apparently, be possible of any portion of the proceedings(see, e.g., your case US v. Jones." 18-cr-834, at #364, pg 23 (October 17,2019). In that case, Inner City Press' live-tweeting drew an "incident report" a copy of which I have yet to see.) This hinders reporting. Given that and the simultaneous US v. Nejad and US v. Schulte, see above, provisions must be made for live-tweeting of this proceeding.

   AUSA Wolf said the public would have the transcripts the night after proceedings - but how? For hundreds of dollars? That is not access. He does not mention access to exhibits, as Inner City Press advocated for and has largely obtained in US v. Schulte, see e.g. its filings in the docket, viewable free (not 10 cents a page) here, here and here.

  The U.S.Supreme Court has recognized that reporting by the news media allows members ofthe 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.We ask that this be placed in the ECF docket and that these issues be addressed by Your Honor before the trial begins." Watch this site.

The case is US v. Randall, et al., 19-cr-131  (Engelmayer).


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