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Amid More SDNY Discovery Violation Hossain Gets Out For Thanksgiving Until Midnight

By Matthew Russell Lee, Thread, Patreon Song

SDNY COURTHOUSE, Nov 25  – Iranian banker Ali Sadr Hashemi Nejad had been on trial, charged with money laundering and violating US sanctions including through a Venezuelan infrastructure project. It has devolved into a show of discovery violations by the US Attorney's Office, now echoed in another case, US v. Delowar Hossain, 19 Cr. 606 (SHS)

  On March 16 in the Nejad case, after an unprecedented decision to proceed with ten jurors in the jury room and an eleventh at home, deliberating by video conference or FaceTime, he was found guilty on most charges. Live tweeted thread here. (Facetime features in Hossein, below)

 Late on Friday, June 5 this news dump: "Re: United States v. Ali Sadr Hashemi Nejadin, 18 Cr. 224 (AJN)  Dear Judge Nathan: The Government respectfully submits the enclosed application for an order of nolle prosequi of the Indictments filed in this case against Ali Sadr Hashemi Nejadin (“Sadr”) and Bahram Karimi. Respectfully submitted, /s/ GEOFFREY S. BERMAN  United States Attorney"

 Then on July 17, Judge Nathan issued an Order here,  followed on September 16 a 42-page order dissecting US Attorney's Office misdeeds.

  And here are more: "United States v. Delowar Hossain, 19 Cr. 606 (SHS) Dear Judge Stein:
The defense writes, with the consent of the government, requesting an adjournment
of at least 90 days of the December 15, 2020 trial date in the above-captioned case and the
resetting of all pre-trial deadlines, including the upcoming November 16, 2020 deadline for
in limine motions, proposed voir dire, and jury instructions.
Over the past few days, and starting on November 5, 2020, the government began
producing additional Rule 16 materials (nearly 450 files of electronic discovery) the bulk of
which were not previously disclosed to the defense."

On November 17, the US Attorney's Office's David Denton wrote to Judge Stein: "In the course of preparing for trial, the Government discovered that these representations were inaccurate. The Government sincerely regrets these errors, and has been working diligently to correct them. In particular, during the week of November 2, 2020, in the course of preparing 18 U.S.C. § 3500 material for two confidential sources (“CS-1” and “CS-2” and, together, the “CSes”), the Government identified additional screenshots, or photographs, of messages between the defendant and the CSes which had been attached to reports reflecting the CSes’ statements to law enforcement agents handling this case. When the Government realized that these messages had never been produced, the Government promptly produced them to the defense on November 8, 1 advising the defense specifically that the majority of the messages had never before been produced in Rule 16 discovery, and that the Government was taking immediate corrective steps to ensure that no additional discoverable materials had been overlooked. Over the next several days, the Government undertook significant efforts to identify and produce any and all additional discoverable information. ..Based on this review, the Government believes that it is now in compliance with its Brady and Rule 16 obligations (except for the currently classified materials the Government intends to produce imminently)." Except.

Now on November 25, Judge Stein has agreed to allow Hossain out until midnight on Thanksgiving: "Q "We write to respectfully seek a modification of Delowar Hossain’s bail conditions to permit him to spend the upcoming Thanksgiving holiday at Mohammed Chowdury’s house,  Mr. Chowdury is Mr. Hossain’s uncle and one of the five co-signers on Mr. Hossain’s $250,000 personal recognizance bond. Specifically, Mr. Hossain requests the Court’s permission to leave his home at 10:00 AM on Thursday, November 26, 2020, go straight to Mr. Chowdury’s house, and return home by midnight on November 27, 2020. " A: ENDORSEMENT: Application granted with the following modification: defendant shall return home by midnight on November 26, 2020. SO ORDERED: (Signed by Judge Sidney H. Stein on 11/25/2020)."

 In Nejad many of the US Attorney's Office's responses have been under seal. So on October 30 Inner City Press filed a timely application to intervene and unseal, below (and now docketed).

  On November 13, Nejad himself filed a letter under seal - while asking Judge Nathan to unseal it: "Re: United States v. Ali Sadr Hashemi Nejad, Case No. 18-cr-224 (AJN) Dear Judge Nathan: We have today submitted to the Court, under seal, Defendant Ali Sadr Hashemi Nejad’s letter responding to the government’s submissions in response to this Court’s September 16, 2020 Order. See Dkt. 379, at 34. Sadr has submitted this letter under seal because it discusses declarations and exhibits that the government has requested remain under seal. For the reasons stated in his October 30, 2020 letter opposing the government’s sealing request (Dkt. 389), Sadr respectfully requests that the Court unseal Sadr’s letter of today in its entirety, along with the government’s declarations and exhibits."

From Inner City Press' October 30 filing: "the irregularities in the U.S. Attorney's Office's disclosure and other practices in this case - and in other cases Inner City Press is covering in the SDNY, some cited below - militate against shield these judicial documents and those government employees involved from public scrutiny and accountability.  

  In response to your September 16 order, the US Attorney's Office submitted some 1,400 pages on a disk, all under seal. On October 23 redacted cover letter(s) appeared in the docket, with lines like "maintain under seal a letter [REDACTED]," and "based on the existing sealing Order in this case related to [REDACTED.]"     

 Another cover email, referencing the submission of a "disk with the exhibits and other responsive communications" merely states, without argument, that it is a "request that these materials be filed under seal." 

 As the Court surely knows, similar issues have arisen in US v. Ahuja and Shor and numerous other, lower profile cases. As simply one recent (Oct 28) example, it emerged in 19-cr-144 (AHK) that the US Attorney's Office withheld six terabytes of discovery until 17 months into that case, after one of the defendants pled guilty.   

Only yesterday, October 29, a superseding indictment of a UN staff charged with drugging and raping victims in Iraq and in the US was docketed on delay, including the arrest and presentment being disclosed only after it had happened, in    US v. Elkorany, 20-cr-437 (NRB).   

  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)...

  Inner City Press is a proper intervenor, which has covered the underlying case, see, e.g.,  on the late day of trial, this.

  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 this

 Inner City Press after that 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.     And see Judge Furman's Order in US v. Avenatti, 19-cr-374, docket no. 85, granting application, here. 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.    A motion to intervene is the appropriate device to assert the right of access, the Second Circuit has recognized for example in US v. King, 140 F.3d 76, 78 (2d Cir. 1998).     The documents including electronic documents at issue here should not be sealed and should be made available, forthwith. ("Each passing day [that access is denied] may constitute a separate and cognizable infringement of the 1st Amendment," Nebraska Press Association v. Stuart, 427 U.S. 539, 580 (1976)).  Please confirm receipt & docket this timely responsive filing, making Inner City Press an Interested Party. Thank you. Respectfully submitted,  /s/  Matthew Russell Lee, Esq., Inner City Press

Back in March: Judge Nathan: "The jury has reached a verdict.... The juror on video conference will stay on until he hears from me further." Jury entering! Judge Nathan: "I'll ask the foreperson. Has the jury asked a unanimous verdict?" Yes.

 Judge Nathan: Count 1, how do you find the defendant, with conspiring to defraud the US? Guilty. Count 2: Guilty.

Judge Nathan (after sidebar) "On Count 3, bank fraud, how do you find? Guilty. Under 1344, prong 1, neither (?) Count 4: bank fraud conspiracy:  Under 1344, prong 1, neither (?) Under 1344, prong 2, guilty

Judge Nathan: Count 5: Guilty. Count 6, money laundering conspiracy: Not guilty. Now polling jurors: one? 2? [soon the virtual juror] Let me confirm the verdict with Juror Number 7... I have confirmed it is his verdict. I will dismiss the jury.

  After Judge Nathan had declined to sent Sadr to jail pending sentencing but instead converted him to home detention, Inner City Press rushed out to do a Periscope video live stream (here) and try to ask Sadr a question. His lawyers left in a yellow cab, then he left. Inner City Press asked, Are you going to appeal? He answered softly, Of course. Then he too got in a yellow cab.

  On March 16 amid the Coronavirus COVID-19 crisis, jury deliberations ran into a problem. SDNY Judge Nathan proposed proceeding with ten jurors in the jury room and one connected from outside by video.

 Assistant US Attorney Michael Krause objected. But Judge Nathan said there are extraordinary circumstances and she would proceed thusly. Inner City Press live tweeted it all: thread here. More on Patreon here.

Ali Sadr is represented by lawyer Reid Weingarten of Steptoe & Johnson and, on November 25 as reported by Inner City Press by Brian M. Heberlig before U.S. District Court for the Southern District of New York Judge Alison J. Nathan.

  On Sunday, March 8 [alongside this song] the US Attorney Office which closed its case on March 9 past 9 pm submitted a letter, below.

 On March 12 in closing arguments, this happened:  As jury charge continues: Judge Nathan has just deployed the old saw about circumstantial evidence, that if people come into a windowless courtroom with wet umbrella, jurors are free to conclude it is raining outside. 

But what about Iran sanctions?

AUSA Krause: The defendant knew what he was doing violated US sanctions against Iran. The defendant is charged with six felonies. Mohammad Sadr was the beneficiary of the payments. ...

It's good to have money, in essence. This is not how lower income defendants are often treated in the SDNY. The case is USA v. Nejad,  18-cr-00224 (Nathan). More on Patreon here



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