| In Sex Trafficking Case Cut
by COVID Now SDNY Belatedly Provides Prison
Calls & Emails
By Matthew
Russell Lee, Patreon Thread
BBC
- Decrypt
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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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