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In SDNY Parnas Case Kukushkin Asks to Sever And Cites US Use of Privileged Email Chain

By Matthew Russell Lee, Patreon Order Podcast

SDNY COURTHOUSE, Dec 23 – Whether any US government agency engaged in wiretapping not authorized by a court in connection with the prosecution of David Correia, Lev Parnas, Igor Fruman 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.

 On November 30, a proceeding was held, moving the trial back from March 1, 2021, live tweeted thread here and below.

  Now on December 23 Andrey Kukushkin's lawyer Gerald B. Lefcourt filed a memo of law seeking to sever or separate his trial, to get a foreign deposition of "Foreign-National-1" - and asking for dismissal of the indictment "based on the government's violation of... attorney client privilege or recusal of the government's prosecution team."

  A separate memo says the prosecutors used an email chain covered by attorney client privilege to allege the foreign donor scheme. There are redactions...

 On December 22 Lev Parnas' lawyer Joseph Bondy filed a memo of law seeking dismissal of the indictment, or severance of counts, or production of all Brady and Giglio material. Appended to the memo are exhibited including the transcript of a voice mail from Rudy Guiliani, here; and an email from John Dowd to Jay Sekulow, Rudy Guiliani and others, here, stating that

"We are sending a letter to the intel committee to eliminate any doubt that Igor and Lev will appear to answer questions because we are not prepared to do so. We are tempted to take on a challenge to the legitimacy of the inquiry without all the bells and whistles. It would help to know if the Boss/WH is going to challenge. I hope.

"This is  a huge opportunity to educate the public about the stupidity of Nancy's folly and the fake WB. By the way McCollough has left the Compass Rose over pangs of conscience regarding the handoff of Schifty. (not enough to serve the public interest) Turn the hounds loose! John M. Dowd."

From November 30, Inner City Press' live tweeted thread: AUSA Nicolas Roos: The superseding indictment had Court 4, the Foreign Donor Scheme, and new Court 6, making a contribution by a foreign national, and Court 7, on Fraud Guaranty... Correia has now pled guilty.

Judge Oetken: Have the defendants read the new indictment? And then I'll take your plea. Parnas: Yes I have read it and I waive public reading. I plead not guilty. Fruman: Same - not guilty Andrey Kukushkin (heavy accent) "Not guilty your honor."

AUSA Roos: There are additional material, a volume of emails seized... Judge Oetken: I suggest counsel confer on submitted a partially redacted letter. Lefcourt (for Kukushkin) - the exhibits will be sealed.

 Todd Blanche for Igor Fruman: We propose that the government be required to produce 3500 material-- Court reporter: I lost the call and just got back. I got cut off at COVID. Blanche: The others don't live in NY, so it's hard to meet.

 Lefcourt: The Eastern District has shut down trials. But there is an end in sight. Third quarter 2021 could be OK. I don't want to take the subway two hours a day. Bondy: I agree, order the US to forthwith produce Brady material.

 Bondy: Last week when told the US we intend to challenge the grand jury, where it sat. [Issue in US v. Balde that Inner City Press covers, here]

Judge Oetken: Mr Roos? AUSA Roos: This is the first we've heard of this request for an adjournment of the trial and motions. At first blush we are opposed to it, from a societal standpoint.

AUSA Roos: These are overblown complaints. The Estonian documents are a response to an M-LAT request. We're happy to confer with the defense. Mr. Parnas said he couldn't find one of the productions so we did it again. There's little left.

 AUSA Roos: The defense can make motions under the schedule. Ultimately this is just repetition of previous requests, we don't see a basis for an adjournment.

AUSA Roos: We provided summaries like in the recent "Collins" case, the 302s are not required. So we think your Honor should put in for the March 1 adjourned trial date.

 Judge Oetken: Judge Rakoff has a standing rule of 2 weeks for Brady, 4 weeks for Giglio...

 Defense lawyer cuts in: There's a new world of Brady Second defense lawyer - Bondy - adds in about "Jeelio," which is the way Judge Rakoff pronounces Giglio, and says it Trumps 3500 material

 AUSA Roos: We're saying to the extent they are looking for Brady material in emails, they've got it. [Loud doorbell of defense lawyer rings, or gongs]

AUSA Roos: The Judge Rakoff rule - but in a case called Ali (Ollie?), Judge Rakoff limited what US has to do

Judge Oetken: Here in SDNY we held a two-defendent criminal trial [Judge Rakoff's MiMedx trial of Petit and Taylor, which Inner City Press covered, to the verdict, here]

Judge Oetken: I doubt we'll get March 1, there are so many detained defendants. Hopeful a vaccine is on the horizon. I'd still like you to file your motions tomorrow. Is there a strenuous objection to that? Defense lawyer: But where did the grand jury sit?

AUSA Roos: We did indicate which courthouse they sat in, I'm not sure I can give that information in this conference.

[Inner City Press would ask, Why not?]

Defense lawyer cites Balde case, see above.

Judge Oetken: Get back to me in 2 weeks about trial dates.
AUSA Roos: In September you extended time through the Feb 1 trial date, then to March 1. We'll come up with a new trial date... Judge Oetken: I'll set a date before March 1, to argue motions.

Inner City Press has opposed sealed filings - now possibly including Correia's pleas agreements whether docketed or marked.

 On November 12, noting Inner City Press' advocacy to unseal, Judge J. Paul Oetken has ordered the full unsealing of Correia's declarations, in five business days. Full order now on DocumentCloud here, including: "After considering counsel’s justifications for sealing or redacting the declarations (see Dkt. No. 128),1 [FN1: The Court also takes notice of the letter filed by Matthew Russell Lee advocating for public access to these declarations. (See Dkt. No. 126)], the Court orders counsel to promptly file the unredacted declarations on the public docket."

 And now, as advocated for by Inner City Press, here it is, on DocumentCloud here.

The unsealed affidavit: "I am moving to withdraw because Mr. Correia has not paid me for any of the legal work I have performed for him. Mr. Correia retained me around the time of his arrest. Since that time, Mr. Correia and I have discussed fees on many occasions and he has expressed confidence that he would soon be in a position to pay for his legal representation. As recently as September 19, 2020, Mr. Correia said that he hoped he could soon pay his fees. But he has not been able to do so. Based on my conversations with Mr. Correia, and his continued inability to raise funds, I believe that his finances will qualify him for appointed counsel. 4. Until last week, an important factor in my decision to give Mr. Correia more time to pay was the very limited scope of the prior charge against him. It alleged his participation in a single conspiracy that primarily involved a Cannabis business and a small number of Fall 2018 political contributions in Nevada. 5. The charges against Mr. Correia changed dramatically this past Thursday, September 17, 2020, when the Government filed a superseding indictment (the “S1 Indictment”) that vastly expands the scope and complexity of charges against Mr. Correia. 6. Count Seven of the S1 Indictment newly alleges that Mr. Correia engaged in a securities fraud scheme involving an insurance-product company, claiming that 7 victims were defrauded in excess of one million dollars over almost 7 years based on false statements about the finances of that company.

7. Counts Two and Three of the S l Indictment further add charges that Mr. Correia made false statements and submitted falsified records to the FEC related to whether a different entity - a liquified natural gas company - was a bona fide business enterprise. 8. Given the breadth of the new allegations, this is now a much more extensive case than the one I had been retained to def end. 9. Regarding the case calendar, prior to the S l Indictment, the Court set a case schedule. Last week, the parties began discussing the need to request that the Court adjust that case schedule in light of the new charges, ongoing discovery, and the COVID pandemic. a. Discovery. The Government has made voluminous productions, but they are nonetheless ongoing. In a teleconference on Friday, the Government indicated that it had a "fair bit" of additional discovery to make, including a "sizeable email production" that it anticipated making in l O days. b. Motions. The Court had previously set a pretrial motions deadline of October 5, 2020. The parties are discussing the motion schedule in light of the SI Indictment, and I anticipate a request to adjourn those dates. c. Trial. A trial date was also set for February I, 2021. Though still almost five months away, there is a question as to whether this date will hold given current court procedures that severely limit jury trials in the district during the pandemic. 10. I informed the Government that I intended to file this withdrawal motion and that nonpayment is the basis of the motion. I have not otherwise provided them with the details in this declaration and I respectfully request that the Court accept it ex parte and under seal."  So where is Avenatti's filing?

 The logic also applies, inter alia, to the still withheld financial declarations of Michael Avenatti, here.

  On October 29 Correia pleaded guilty to two counts. Inner City Press live tweeted it, here:

Correia's taxpayer paid lawyer, William Harrington of Goodwin Proctor, confirms he'll plead guilty. Turns out he prefers his name to be said "Korea," not Correia like belt in Spanish.

Judge Oetken making requires findings under the CARES Act. Will he do DPPA too?

Correia is pleading to Counts 2 and 7 of the superseding indictment: False Statements to the FEC and The Fraud Guarantee Scheme. Correia went three quarters of the way through college, he says. Never treated for mental illness. Gastro-intestinal is his only doctor 

AUSA Doug Zolkind, insisting on calling him "Correia" like belt, not Korea, runs through the elements of each count. Judge Oetken: Are you a US citizen? Correia: Yes, your Honor.

 Now the plea agreement that the US Attorney's Office has agreed to for Correia:  

guideline sentence of 33 to 41 months. Fine of $15,000 to $150,000.

Judge Oekten: Tell me what you did.

Correia: I have a statement. My declaration said things that were false, I filed it to get FEC to end their investigation. I knew it was wrong. Judge Oekten: What about count 7? Correia: I have false info about Fraud Guaranty

Correia adds that he thought Fraud Guaranty was a great project. AUSA Zolkind: Did the defendant know it would be carried out by interstate wires?

Correia: They were in fact used. AUSA Zolkind says woulda used emails. He references Parnas and Fruman

 AUSA Zolkind: They committed straw donations. Correia filed a false affidavit, about "substantial bone fide" investments. He knew they were false, for the $325,000 donation. Also he lied about Fraud Guaranty, which had no operations nor insurance products.

AUSA Zolkind: 7 victims invested in Fraud Guaranty, between $250,000 and $500,000 each. But this paid Parnas' rent and luxury cars, retail store purchases.  Multiple meetings were held in Manhattan.  Correia's lawyer: Mr. Correia got very little of the money.

Judge Oetken: Mr. Correia, I hereby accept your guilty plea. For sentencing,  how about February 12? Correia's lawyer wants it earlier. Judge Oetken: February 8, at 11:30 am, then. AUSA Zolkind: The plea agreement says he withdraws mandamus in 2d Cir.

AUSA Zolkind wants to file plea agreement under seal. Judge Oetken: I don't usually put plea agreements on the docket. Then people could figure out who's a cooperator.

AUSA Zolkind: But press could request it. So we want it redacted.

Judge Oetken: I won't mark it as a court exhibit. Adjourned.

[Inner City Press: The plea agreement is clearly a judicial document, whether docketed or not, whether made a court exhibit or not (these may be seen as evasions of transparency.]

 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). ...

  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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