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In SDNY Parnas Trial Delayed to March 1 US Says Public Talk of Discovery Is Prohibited

By Matthew Russell Lee, Patreon Periscope

SDNY COURTHOUSE, Oct 8 – 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. Inner City Press is opposing sealed filings, below.

On October 8 there was a conference in the case, resulting in the trial being pushed back from February 1 to March 1. Inner City Press live tweeted it, here:

As defense counsel argues about the US Attorney's Office 8 page Brady letter, AUSA cuts in to remind that there is protective order in this case prohibiting any public description of the discovery.

Again, Inner City Press has filed for transparency

 AUSA Rebekah Donaleski says there are still some devices they have not been able to crack. But they don't think the new indictment merits an 8 week delay.

Judge Oetken: Still to be provides are emails and pictures...

AUSA: Our vendor is still imaging the documents. But a 1 gig hard drive should be large enough. 

Todd Blanche for Fruman: "I have nothing to add."

Another counsel: The problem with the February date, it needs to be pushed back in accordance with the motions.

Judge Oetken: I do intend to grant an extension for the motions, and a change in trial date. February 1 is too aggressive. Thing are more slow now.  Motion Dec 1, replies Jan 15. Trial date March 1st. I'd like to have the Nov 30 conference to discuss discovery

Counsel(s): that's fine, 2 pm.

Judge Oetken: Now I've exclude time under the Speedy Trial Act

AUSA: To March 1?

 Judge Oetken: Any objection? [None] Done.

 On September 17, a superseding indictment "LEV PARNAS and DAVID CORREIA were charged in a Superseding Indictment with conspiring to commit wire fraud in connection with their efforts to raise funds ostensibly for their business, “Fraud Guarantee.”  The Superseding Indictment also includes additional campaign finance charges against the defendants.  In October 2019, PARNAS, CORREIA, IGOR FRUMAN, and ANDREY KUKUSHKIN were charged in a four-count indictment alleging that each of the defendants conspired to violate the ban on political donations and contributions by foreign nationals.  In addition, PARNAS and FRUMAN were charged with conspiring to make contributions in connection with federal elections in the names of others, and with making false statements to and falsifying records to obstruct the administration of a matter within the jurisdiction of the Federal Election Commission (“FEC”).  The Superseding Indictment returned today – in addition to charging PARNAS and CORREIA with conspiracy to commit wire fraud – charges CORREIA with making false statements to and falsifying records to obstruct the administration of a matter within the jurisdiction of the FEC; charges PARNAS, FRUMAN, and CORREIA with soliciting a foreign national to make donations and contributions in connection with federal and state elections; and charges PARNAS, FRUMAN, and KUKUSHKIN with aiding and abetting the making of donations and contributions by a foreign national in connection with federal and state elections.  The case is assigned to U.S. District Judge J. Paul Oetken in the Southern District of New York.  Trial is currently scheduled for February 1, 2021."

  Then, this: "On September 21, 2020, counsel for Defendant David Correia submitted to chambers a motion to withdraw as counsel for Mr. Correia, with declarations addressing the reasons for their motion to withdraw. They request that the declarations be filed under seal and ex parte, “as they pertain to Mr. Correia’s relationship with counsel.” Any redaction or sealing of a court filing must be narrowly tailored to serve whatever purpose justifies the redaction or sealing and must be otherwise consistent with the presumption in favor of public access to judicial documents. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006). Counsel’s representation that the declarations “pertain to Mr. Correia’s relationship with counsel” is insufficient to meet that standard. To the extent that the declarations include privileged or other confidential communications between counsel and Mr. Correia, they may properly be redacted. However, the facts that Mr. Correia has not paid his attorneys’ bills and that he may qualify for court-appointed counsel are not privileged and do not, in the Court’s view, meet the Lugosch standard. Accordingly, counsel for Mr. Correia (1) shall promptly file their motion to withdraw on the public docket, (2) shall, on or before September 25, 2020, submit to chambers proposed redactions of their declarations, together with a letter explaining how such redactions satisfy the Lugosch standard, and (3) shall promptly work with Mr. Correia on the retention of replacement  counsel and/or preparation of a financial affidavit in support of court-appointed counsel. The Court will then schedule a conference to address counsel’s motion to withdraw."

 Inner City Press filed, now docketed, this: "Hon. J. Paul Oetken, United States District Judge Southern District of New York, 40 Foley Square, New York, NY 10007  Re: US v. Correia, 19-cr-725-3 (JPO) - Motion for Leave To Be Heard / Press Request To Unseal Dear Judge Oetken:    On behalf of Inner City Press and in my personal capacity, I have been covering the above-captioned case since it was filed. This concerns documents filed under (requested) seal in the case, 19-cr-725.    Defense counsel have "request[ed] that this motion be accepted ex parte and filed under seal." This is opposition.    Formally, PLEASE TAKE NOTICE that Inner City Press and its undersigned reporter, in personal capacity, will move this Court before Honorable J. Paul Oetken, U.S. District Judge for the Southern District of New York, at a date and time directed by the Court, for entry of an order granting permission to the heard on/and the unsealing of documents filed and/or submitted in 19-cr-725 (JPO), pursuant to Docket No. 122 in that case and the Court's inherent power, and such other and further relief as the Court deem just and proper.     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).       Recently in SDNY Magistrates Court financial information about defendants has been read out in the public record, including for the appointment of Federal Defenders. See, e.g., US v. Castro, et al., 20-mj-8994 (Freeman) & here.

  Those and other defendants whose financial information have been disclosed including in Magistrates Court this summer had the same arguments as made by counsel to defendant Correia, that the information might be used against them. And yet the other defendants' information was disclosed.    As stated in US v. Harris, 707 F.2d at 663, facts should be determined through adversarial proceedings.    While beyond the scope of this letter, the Court could limit the use in this case by the prosecution of the unsealed information, without unnecessarily overriding the presumption of public access. 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 here and here.   Inner City Press recently 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.   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.   Inner City Press has covered the case(s) against Mr. Correia (and Mr. Parnas, et al.) for some time. See, e.g., October 2019, here.

 In another pending case, US v. Edwards, 19-cr-64 (GHW), the Office had initially said that documents submitted by the defendant (described as the leaker of Paul Manafort's Suspicious Activity Reports) should be put in the public docket. Then, while Inner City Press is pursuing that, the US Attorney's Office has stopped pushing.    See also, here and here [more on this forthcoming.]    The documents at issue here should not be sealed and should be made available. Please confirm receipt & docket this timely responsive filing. Thank you.  Respectfully submitted, /s/ Matthew Russell Lee, Inner City Press."

 Now on September 29, this - Correia has gotten his free / taxpayer funded lawyer, but still no action on Inner City Press' docketed opposition to the sealing: "Attorney update in case as to David Correia (3). Attorney (CJA) William Joseph Harrington for David Correia added. Attorney (Retained) Jeffrey E. Marcus terminated." CJA means Criminal Justice Act.

  Back on February 3 SDNY Judge Oetken began the scheduled conference by shooting down the FISA violation arguments, citing decisions by the Second Circuit and his fellow SDNY Judges Edgardo Ramos and Paul Engelmayer.  He asked the prosecutors about the progress of discovery.

  There are still 20 devices not "cracked," although it is complicated because with subpoenas for iCloud accounts, multiple devices' information is revealed.

  A trial date of October 5 was set, with another conference if necessary penciled in for July 16 at 2:30 pm. Afterward in front of 40 Foley Square Parnas' lawyer Bondy snarked at the impeachment trial as a trial by friends; Parnas said he's trying to get the truly about Trump and Giuliani and Ukraine out, but declined to answer if he is cooperating. Then he got into a big black car, saying he was glad to be back in New York. Inner City Press Periscope video here.

 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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