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In SDNY Case of Parnas and Fruman Issues of Warrantless Wiretaps and Superseding Indictment Raised

By Matthew Russell Lee, Patreon Periscope

SDNY COURTHOUSE, Dec 2 – Whether any US government agency engaged in wiretapping not authorized by a court in connection with the prosecution of Lev Parnas, Igor Fruman, David Correia and Andrey Kukushkin came up near the end of a conference in the case on December 2, live-tweeted by Inner City Press here.

  More on Patreon, here.

  U.S. District Court for the Southern District of New York Judge Paul Oetken asked the defense lawyers to formalize the issue and any legal authority in a letter to him. The next conference in the case is set for February 3 at 2 pm. Here's the blow by blow:

Judge Oetken says attendance by Fruman has been waived. Judge wants an update on government's production for discovery from AUSA Zolkind (who also worked on prosecution of UN bribers Ng Lap Seng and Patrick Ho).

 AUSA Zolkind: I have well over nine gigabyte of data... The next category consists of warrants, on email accounts and iCloud accounts and physical premises and electronic devices, some seized during arrest and some at premises. Do you want to hear more?

 Judge Oetken: Yes

AUSA Zolkind:  three iPhone, one thumb drive... one SIM card, one Sat phone, one iPad, three SD cards... 
[this is like a Christmas carol - except for a partridge in a pear tree]

 AUSA Zolkind: We show each defendant his email account after we obtain it. The relevant documents, we show to all defendants. That's a process that will continue as we get access to additional accounts and devices. There's additional stuff that is coming Inner City Press @innercitypress · 1h AUSA Zolkind: There have been issues raised by the defendants about privilege. We have a taint team reviewing before the prosecutors.   As to the devices, often time they are encrypted. The FBI's technical experts are working overtime.

Judge Oetken: I'll hear from the defense. Looks like you got a bunch of stuff on November 21. Are we in position to set a date for motions? Or if not, conference to set a date.  Fruman's lawyer: I was never asked to provide a password. I am concerned at the delay

 Fruman's lawyer: I wanted a trial by summer. That may be unrealistic given what's been said today. I still want to set a trial date today. Judge Oetken: It's going to be 60 days before you get the relevant material. We're not in a position to set a motion schedule

 Correia's lawyer Harrington: In the normal course there would be a sooner trial date and government would have to tell us who their witnesses are and what they'd say.

Judge Oetken: Would you like to set a trial date for the Fall? Harrington: Hard to set for now

Andrey Kukushkin's lawyer Lefcourt: Today is the first day of new Federal rule of discovery 16... We gave them a terabyte hard drive; they gave us 70,000 Bates stamps. 26 blanked out pages on one warrant. We still don't know when that's coming

 Lefcourt: Rule 16.1 contemplates a better process. Have the government provide a draft exhibit list. Also to consider 3500 material earlier than possible. 16.1 talks about getting defendants ready for trial. We have to wait for another conference.

 AUSA Zolkind: The government would object to putting together an exhibit list at this point. They've gotten search warrants and affidavits, we can direct them to particular bank records. So far we haven't been asked.

AUSA Zolkind: With respect to the redactions to the warrants, there's an order for that, based on an ex parte presentation. If they want things faster, they can give us the passwords.  Judge Oetken: Have you asked? Zolkind: We're happy to have that discussion.

 AUSA Zolkind: There is an ongoing investigation, so producing witness statements before normally might jeopardize that. As to 3500 material, we prefer a "reasonable period of time before trial."

Judge Oetken: What's a reasonable time for a conference? Zolkind: Why not a schedule for motions now? Judge Oetken (to the defense lawyers) - if you have a motion about the indictment, why not schedule it now?  A request is made for the Grand Jury exhibits.  Judge Oetken: Why can't you give them the exhibits and transcripts of the Grand Jury? 

AUSA Zolkind: The transcripts are confidential. I'm resisting that we have to put together an index of exhibits. I'm not aware of that ever being required of the government.

 Judge Oetken: I've have you come back in around two months and say where you are, at that point set a motion schedule, maybe a trial date. Do you expect to supersede?  AUSA Zolkind: Our investigation is ongoing and a superseding indictment is likely.

Judge Oetken: So let's make it Feb 3 at 2 pm, I'm not sure what courtroom it will be in, I'll put it on ECF.   Now issue of House subpoena to Parnas. AUSA Zolkind says the protective order might limit Parnas' ability to provide info to Congress

 AUSA Zolkind: If Parnas gives us the password, we'll give him the extraction. Then he'd have to ask court permission to provide any of it to Congress.  Q: Why don't the prosecutors give it to the House? Judge Oetken: Do you want to address the paper records issue?

AUSA Zolkind: We are well on the way to scanning in the material. We are not going to object to his application to the court to provide the information to the House. Judge Oetken: OK, you're a separate branch of government. But there's no process to share?

Judge Oetken: It certainly seems there is a public interest in providing that information to the House... I certainly expect to promptly grant such a request. I hope the government produces those material as soon as possible. AUSA Zolkind: Yes...

 Now discussion turns to Parnas' risk of flight, reference to private jets and oligarch in Vienna who is fighting extradition.  AUSA Zolkind: home detention with electronic monitoring is important to the government, so he doesn't get on a boat or seek a passport

Judge Oetken says he wants to hear the pre-trial services' opinion.  Lefcourt: They said no Title III - but is there any wiretap by another agency? I've asked under 18 USC 3504, since Count 1 relates to Ukraine, and Court 4 with Russia.

Lefcourt: I've watched those hearings... National Security officials said they have been involved in aspect of this case. So I am asking the court to ask the government to respond under 3504. This is the time, to disclose surveillance without authorization

Judge Oetken: This is not a statute I've dealt with before, so I'll take a look at it. AUSA Zolkind: We told them, the government does not intend to use information obtained or derived under FISA. We cannot comment on if there existed a FISA intercept.

 AUSA Zolkind: My understanding is that 3504 only applies to a proceeding in which we are offering evidence - that is, it does not apply today. So it's premature. Judge Oetken: Mr. Lefcourt, do you have any authority on this? Lefcourt: I will submit a letter.

AUSA Zolkind: We told them we are aware of our obligations under Brady and Giglio [he says the second G]. "At this point we don't anticipate filing a CIPA motion." Judge Oetken: I'll look at any letters. See you on February 3.  Watch this site.

Back on November 1, Igor Fruman had three requests denied, to loosen bond restrictions and have his brother Steve as a bond co-signer, all denied on November 1 by Judge Oetken. Periscope here. 

Back on October 23 Lev Parnas' lawyer raised the issue of executive privilege and the need for a US Department of Justice taint team when his client, along with Igor Fruman, were arraigned and both pleaded not guilty. Inner City Press thread here.

   Judge Oetken inquired into whether Parnas worked for President Trump - his lawyer said no - then put off the issues, and the setting of a trial date, until December 2 at 2 pm. Parnas will be under home detention with GPS monitoring in the Southern District of Florida, with no contact with co-defendants outside the presence of counsel. That's a condition co-defendent David Correia's lawyer said he intended to revisit, telling Inner City Press it was because of business relationships, see below.

 Here's some of how it went on October 23:

Judge Oetken's deputy tells the lawyers, The room is cavernous, please speak up. Now Judge Oekten says, we're hear for arraignment on a four count indictment. Asks for time of arrest and about presentment

 AUSA: Parnas will be released on a $1 million bond. Pre-trial supervision out of Southern District of Florida. Home detention with GPS monitoring; DC for legal visits. Surrender passport, no contact with co-defendants outside presence of counsel (Correia disputes)

 AUSA: Igor Fruman putting up a condo. Judge Oetken approves the bail conditions; now proceeding to the arraignment, Parnas first. He waives public reading of the indictment. Pleads Not Guilty. 

 Now Fruman pleads not guilt. Judge Oetken asks AUSA to describe the discover in the case.  AUSA: multiple search warrants, 50 bank accounts, "the investigation is ongoing."

AUSA: By the Dec 2, 2 pm  pre-trial conference US will know more. Judge Oetken: Given the volume of discovery, not setting a trial date yet. Might set it on Dec 2. Parnas' lawyer will be out of the country on that day, he says.

 Parnas' lawyer says there should be  DOJ taint team, says that there are excutive privilege issues... "hese are issues we need to be very sensitive" with, he says. 

Judge Oetken: When you say executive privilege, you're not suggesting your client worked for the President, are you? Parnas' lawyer: No, my client worked with Mr. Giuliani.

Parnas' lawyer: If information gets out then we determine it is all privileged, we've got a problem. AUSA: This is the first that we've heard of this... With respect with executive privilege, we're happy to have a conversation.

 Judge Oetken to Parnas' lawyer: if there's a particular application that you want to make, I'm all ears. Are you going to reach a protective order? AUSA: We are working on it. Judge Oetken: Anything else? Only exclusion of time under the Speed Trial Act. To Dec 2

 Judge Oetken: Okay, I'll see you all on December 2 at 2 pm. Inner City Press said it would be there- and it was. The case is US v. Parnas, et al., 19-cr-00725 (Oetken).


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