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On SDNY Errors in Ahuja and Shor Case Chat About Naftalis Was Withheld Judge Asks Why

By Matthew Russell Lee, Periscope, Photos

SDNY COURTHOUSE, Nov 12 – In the US prosecution of Premium Point Investments hedge funders Anilesh Ahuja and Jeremy Shor, the government doggedly tried to show the jury the so-called sector spread and mid-bid mis-marking scams by which the two defendants allegedly overvalued their portfolios.

  Apparently it worked. But now? Now post-trial filings in the case allege that cooperating witness Majidi had his allocution written, or re-written, by the prosecutors - and handed to him ten minutes before he read it out loud, on October 31, 2018. A ghoulish Halloween on which we'll have more.

 Now on November 12, this from Judge Failla: "The Court is in receipt of the Government's supplemental letter dated October 30, 2020 (Dkt. #414), and accompanying materials, and Defendants Ahuja's and Shor's above letter in response (Dkt. #415). The Government is hereby ORDERED to file a supplemental submission on or before November 25, 2020, explaining the following: (i) why the chat communication reproduced on page 2 above, which includes the word "Naftalis," was not produced until the October 30 supplemental production despite that being an agreed-upon search term; and (ii) the discrepancy in when Mr. Hodge's name does or does not appear in the documents produced by EOUSA, as discussed in the second paragraph on page 3 above. The Government is further ORDERED, by the same date, to produce for in camera review all communications and attachments withheld based on a claim of deliberative process privilege or attorney work product. SO ORDERED. (Signed by Judge Katherine Polk Failla on 11/11/2020) (lnl)." We'll have more on this.

 On September 28, 2020, the US Attorney's Office asked to postpone Amin Majidi's sentencing for at least three months due to the "post-trial litigation" - "Re: United States v. Amin Majidi, 18 Cr. 328 (KPF) Dear Judge Failla: The Government respectfully writes to request that the date for Amin Majidi’s sentencing, which is currently scheduled for October 6, 2020, be adjourned... in order to defer the sentencing until after the completion of the post-trial litigation currently pending in this Court. Counsel for Mr. Majidi consents to this request. Respectfully submitted, AUDREY STRAUSS Attorney for the United States Acting Under Authority Conferred by 28 U.S.C. § 515."

 Now on September 29, Majidi's sentencing has been pushed all the way back to February 10: "MEMO ENDORSEMENT as to Amin Majidi granting [407] CONSENT LETTER MOTION addressed to Judge Katherine Polk Failla from Max Nicholas dated September 28, 2020 re: Adjournment of Sentencing. ENDORSEMENT: Application GRANTED. The sentencing for defendant Amin Majidi, previously scheduled for October 6, 2020, is hereby ADJOURNED to February 10, 2021, at 3:00 p.m. in Courtroom 618 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, NY. SO ORDERED."

  On August 5, the Second Circuit granted a motion to hold the appeals of Neil Ahuja and Jeremy Shor in abeyance pending Judge Failla's inquiry. Shor's counsel Justin Weddle filed that with Judge Failla asking to postpone surrender until the later of January 4, 2021 or 90 days after any motions Shor makes after the fact finding process.

 On July 24, Judge Failla held a proceeding. Inner City Press live tweeted it, below.

 Now on August 4, from Judge Failla, this: "The Court is in receipt of the Government's July 31, 2020 letter (Dkt. #393), and Ahuja's and Shor's  letter (Dkt. #395). The Court resolves the parties' dispute as follows: (i) the Government is ORDERED to expand its search to include the time period of June 10, 2020 to June 19, 2020, as requested by Ahuja and Shor; (ii) the Government is ORDERED to produce documents identified during its review that reflect any suggestion, instruction, direction or preference that any communication not be sent by email or otherwise put in writing, that a communication take place in-person or by telephone, or that a method of communication other than email be used; and (iii) Ahuja's and Shor's request for the Government to review internal communications from June 3 2019 to June 11, 2019 is DENIED, as the Government's granular searches outlined in pages 1-3 of its July 31, 2020 letter should produce any relevant documents from this time period. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/4/2020)."

From July 24: Before Judge Failla, a push to get the type of US Attorney's Office internal chats that "recently came up in a case before Judge Nathan" - that is, US v. Nejad, here..

Judge Failla began this proceeding by disclosing having run into lawyers in the case, since the trial, at a cocktail party by Preet Bharara  - and wants full answers

Judge Failla said the US Attorney's Office's approach to this inquiry has been "interative." She asks them to give a complete answer: what happened in this case? Urges that none of the cooperators be sentenced until this inquiry is finished. US seems to agree.

 Defense lawyer: Your Honor should order the government to go back and review the whole file, for all Brady & Giglio - their representations so far, we can't rely on. "There was a deliberate effort to not put things in emails in order to not have to disclose them"

Defense lawyer: It is clear that each of the cooperators allocutions were shaped by the US Attorney - with no written record of it. An edited document was created, then instead of e-mailing there is a phone call to discuss the changes. So what else is there?

 AUSA: It's unfair to say we don't know what Brady and Giglio are. [That's not what's being said.]

 Judge Failla: I want to see whatever comes to me in this matter. Then I'll decide on more.

Back on July 16, the US Attorney's Office informed Judge Failla that they will collect and release all records related to a November 26, 2019 FOIA request, including "any emails, text messages, internal chats and voicemails...The Government plans to use the search term 'FOIA' to conduct this search." We'll have more on this.

Back on June 21, the day after a legal reality show surrounding SDNY US Attorney Geoffrey Berman and the office, Inner City Press reported that only days before that Office, after the Ali Sadr Hashemi Nejad "errors," admitted others in Ahuja and Shor: "Re: United States v. Anilesh Ahuja, et al. S1 18 Cr. 328 (KPF) Dear Judge Failla: The Government respectfully writes to advise the Court and the parties that certain representations it made to the Court during trial about the Government’s communications with counsel for cooperating witness Amin Majidi prior to Majidi’s guilty plea were wrong. While the Government’s communications with Majidi’s counsel were entirely proper, its recounting of those communications to the Court was partly inaccurate. 1 During trial, the Government produced to defense counsel a draft allocution that Majidi’s counsel had sent to the Government in advance of Majidi’s plea proceeding (the “Draft Allocution”). The Draft Allocution differed from the allocution that Majidi gave (the “Final Allocution”). The Court made clear that draft allocutions received from counsel for cooperating witnesses should have been produced to the defense earlier, pursuant to United States v. Triumph Capital Group, Inc., 544 F.3d 149 (2d Cir. 2008), and directed the Government to review its attorney communications in this case for any additional materials that should be produced to the defense pursuant to Triumph Capital. (Tr. 479)."

 On June 24, the SDNY US Attorney's Office now under Audrey Strauss wrote that "the Government agrees to undertake a search of internal emails (including calendar invites), as well as internal paper and electronic files, for certain materials that would be responsive to this request. Specifically, the prosecutors on the trial team are searching all of their internal emails beginning two days prior to the plea proceedings for Majidi and cooperating witnesses Frank Dinucci and Ashish Dole, up to and including the date of those plea proceedings,1 for any materials responsive to the request in the Shor Letter (i.e. “internal or external communications regarding the substance or content of any draft, proposed, or actual plea allocution relating to the scheme alleged in this case; any meetings regarding cooperator allocutions in this case; and all versions of any draft, proposed, or actual plea allocutions relating to the scheme alleged in this case” (see Shor Letter at 8)), notwithstanding whether such materials were ever communicated to outside counsel or would be discoverable pursuant to Triumph Capital, Brady, Giglio, or on any other legal basis. The Government will produce any relevant materials resulting from this search by June 26, 2020. The Government believes that searching for and producing to the Court and the parties internal communications of this kind is appropriate in light of the specific facts of this case; namely, the mistakes described in the Government Letter, irrespective of whether such communications are discoverable or can be used in any way by either defendant. However, the Government does not believe that this search should be required to include phone logs, as requested in the Shor Letter. To the extent they are maintained, phone logs would not reflect the substance of actual conversations, and expanding the search to include them is not warranted." Will Judge Failla, like Judge Nathan, ask who is responsible?

  Back on July 11 the jury found both Ahuja and Shor guilty. This came after, on the 4th of July, Judge Katherine Polk Failla denied Shor's bid to introduce into evidence portions of the FBI Form 302 interview with James Nimberg. Or maybe it was the text message, introduced into evidence, in which Shor told Ashisha Dole and cooperating witness Majidi, "I’m done giving frank a BJ. Sorry to be crass boss. Back in 3."
We'll have more on this.


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