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In Schulte CIA Leak Case US Will Go to Grand Jury When Can As Judge Crotty Wonders When Trials

By Matthew Russell Lee, Patreon Thread Song
BBC - Decrypt - LightRead - Honduras - Source

SDNY COURTHOUSE, May 18 – In the conclusion of the month long trial of accused CIA leaker Joshua Schulte, on the morning of March 9 the jury returned guilty verdicts on Counts 8 and 10, with mistrial granted on all other counts. U.S. District Court for the Southern District of New York Judge Paul A. Crotty set March 26 for the next date.  Then it was moved to April 22 (then May 18). March 9 thread here. Song here.

 On May 18, Judge Crotty held a status conference, which Inner City Press covered.

 Assistant US Attorney David Denton said, The Government intends to re-try Mr. Schulte on the espionage charges, based on the notes we received from the jury. And we intend to move forward on the child pornography charges.

  Judge Crotty said, It's difficult to predict when thing will return to normal. Are there are grand juries?

  AUSA Denton replied, They are being brought in on an emergency basis.

  Judge Crotty asked, And Mr Schulte is not an emergency?

  AUSA Denton said, No, he has already been charged.

 Schulte's lawyer Sabrina Shroff asked, What does it mean, brought in on emergency basis?

   AUSA Denton said, On Mr. Schulte, we plan to proceed as soon as normal grand jury operations have resumed.

  Judge Crotty said, That won't occur until later in Summer...  It's my information no jury trials until September at the earliest.

 Sabrina Shroff said, Mr Schulte I believe would say a grand jury is needed now, he wants the case to proceed.

  Judge Crotty reflected, As I remember, many of our jurors were from Westchester County. So, a transportation problem.

 AUSA Denton offered, The second trial could be shorter, we will streamline. 

  Judge Crotty proposed, Let's reconvene mid to late June. Anything else?

  AUSA Denton moved, Let's exclude time under the Speedy Trial Act.

  Judge Crotty asked, Any objection?

 Sabrina Shroff said, I think Mr Schulte does have an objection.

  Judge Crotty ruled, Motions are pending, so I am excluding time, in the interest of justice outweigh the interests of the public and defendant in a speedy trial.

  Schulte has filed a Motion of Acquittal. Here's the outline: "The Court should enter a judgment of acquittal on Count Six because the general federal larceny statute, 18 U.S.C. § 641, does not apply to Mr. Schulte’s alleged gathering and leaking of classified information ...................... 2 A. Rule 29 requires acquittal if no rational jury could have properly convicted the defendant of the charged crime.......................... 2 B. Acquittal is required because no rational jury could have properly convicted Mr. Schulte of violating 18 U.S.C. § 641.......................... 3 1. Section 641’s text, context, and history do not support applying it to Mr. Schulte’s alleged copying and disclosure of classified information. . 3 2. Section 641 should be construed narrowly to avoid serious constitutional problems....................................... 7 3. The rule of lenity requires resolving any remaining statutory ambiguity in favor of Mr. Schulte.............". Inner City Press will continue to cover this case.

 On April 20 Schulte's lawyers understandably asked to move it into May. On April 21, Judge Crotty endorsed the date changes: "MEMO ENDORSEMENT as to Joshua Adam Schulte on re: [354] LETTER by Joshua Adam Schulte addressed to Judge Paul A. Crotty from Sabrina Shroff & Edward Zas dated April 20, 2020. ENDORSEMENT: Post-trial motions are due on May 15, 2020. The April 22 conference is adjourned to Monday, May 18."

  Here was more from Schulte's lawyers' letter: "Re: United States v. Joshua Adam Schulte, 17 Cr. 548 (PAC) Honorable Judge Crotty: We write to seek relief from the Court regarding several matters. First, we are unable to file Mr. Schulte’s post-trial motions (due on April 22, 2020), as we have been not spoken with Mr. Schulte to discuss the motions with him. MCC-NY has not been open for legal visits and, but for one brief phone call in late March, we have been unable to speak with Mr. Schulte. In light of the ongoing pandemic, we ask the Court to allow us until May 15, 2020, to file our post-trial motions, so that we may confer with our client before filing them. To that end, we have sought and continue to seek legal calls with Mr. Schulte. The government consents to this request.

Second, we ask the Court to order the MCC to provide a social call between Mr. Schulte and his parents. Our requests to MCC-NY for such a call have gone unanswered. Mr. Schulte has not spoken to his parents since March 14, 2020. Mr. Schulte is allowed a monthly visit and a phone call with his family. We ask the court to order the Bureau of Prisons to schedule a 1-hour social call so that Mr. Schulte may speak to his parents. To ensure that the family does not miss the telephone call, we ask for advance notice on the timing of the call. We have asked the government for its assistance and despite its best efforts, we have not had any forward movement. The government takes no position on this request.

Finally, we ask the Court to adjourn the scheduled April 22, 2020 status teleconference until a date during the week of May 18, 2020, so that Mr. Schulte can be made available for the call." Inner City Press will continue to cover this case.

Back on afternoon of Friday, March 6 the jury said it was aligned on two counts (Count 8 involving causing the transmission of a harmful computer program, information, code or command and Count 10 involving obstruction of justice) and was at an impasse on the remaining counts: that is, on eight counts.  Live tweeted thread here.

More on Patreon here. Song here.

 Back on the afternoon of February 28 the US in an emergency hearing dropped Count 2 against Schulte, and admitted that it can never be revived: jeopardy has attached. Inner City Press has obtained the transcript and tweeted and uploaded it here on Scribd, on Patreon here.

  On March 5, Judge Paul A. Crotty and both side's lawyers held a closed door proceeding in the judge's robing room. Afterward Assistant US Attorney Matthew Laroche said that the transcript should be sealed until after a verdict.

  Inner City Press immediately wrote to Judge Crotty and the docket, for the fifth time in this proceeding (here's III and IV): "Dear Judge Crotty:    This supplements the January 22, 23 and 26 and February 24, 2020 submissions on this topic on behalf of Inner City Press and in my personal capacity. Your Honor on Janaury 31 ruled inter alia that "[t]he Government is directed to make transcripts and exhibits available to the public no later than the evening after the day of testimony." Docket No. 293, at 15.   This morning after a robing room discussion about Juror Number 5 (and perhaps other matters) from which the press was excluded, AUSA Laroche urged your Honor to seal the transcript of that discussion until AFTER there is a verdict. That is unacceptable, and inconsistent with your previous order.  The purpose of this letter is to formally request at the earliest time - 10 minutes after AUSA Laroche's statement, your ruling on which is unclear - that the transcript of the robing room proceeding be made available immediately, as well as all other exhibits which Inner City Press has continued available to the public on"

  Meanwhile, as now excused Juror 5 left the courthouse, Inner City Press caught the tail / end of her comments to two intrepid tabloids. She specializes in buttocks sculpting - and most explosively, indicted that she believed Schulte was naughty but not guilty. This would seem at a minimum to provide fuel for a defense appeal in the event of a conviction. But first - the transcript. Watch this site.

  On March 4, the jury deliberated for a full second day without reaching a verdict. Or perhaps the whole jury did not deliberate - as Inner City Press first tweeted (thread here), the foreperson passed out a note that Juror Number Four (whose name was said) was refusing to deliberate with others, was conducting their own inquiry into the evidence. Schulte's lawyer Zas urged Judge Crotty to let time elapse before acting. Could this type of independent inquiry be more favorable to Schulte than that US? Thread here; Inner City Press is staying on the case.

  On March 3, the jury deliberated and asked at least nine questions. Inner City Press live tweeted it, thread here. There were questions about locking and unlocking computers, and if Schulte was ever diagnosed with Asperger's Syndrome, a matter raised in cross-examination. Perhaps of concern for the defense was the lack of questions about alternate suspect Michael.

  At day's end in Judge Crotty's courtroom gallery it was only Inner City Press and one of the Assistant US Attorneys, who waited to say he and Schulte's lawyers would try to answer some of the questions the next day, March 4. Inner City Press will be there - watch this site.

  On March 2 were the closing arguments, which Inner City Press tweeted, thread here.

AUSA Laroche: Joshua Schulte - King Josh, he thought he was - reinstated his privileges without authorization. It was a huge red flag. So the CIA acted - it tried to keep him out. But it left a backdoor, that he used...

Schulte was so focused on getting his privileges back he is willing to lie again. He's logging in and out all day. This is his IP address - he's logging in. He's using that key, that session, to view log files.

Let's recap what happened. At 7:17 pm he logged in again. Then 7:44 pm he's using that left-over key to view log files as an administrator with absolutely no reason. He was planning to steal the information.

The information WikiLeaks published must have come from back-up files, and we know the dates of the files... Defendant reverted the files to a time when he had full access. Minutes later, he steals the back ups. And he deletes log files.

AUSA Laroche: You know it was the defendant - this 766 number, it is his session. It was stored in his unallocated space. You will see that the defendant searches again and again for it....

Schulte's lawyer Sabrina Shroff: DEVLAN was wide open. Passwords were leaked. There were not audit logs. The witnesses told you DEVLAN was the Wild, Wild West.... They called DEVLAN a "dirty network." It had very easy passwords. Simply carrying the data out the door on a hard drive would not be difficult.

Shroff points at the AUSAs - "They don't know." They look down at their hands. Shroff: He tells you, the Alta backups were wide open.

Shroff: Michael was present at his desk when the government says the data was taken. The computer evidence they claim points to Mr. Schulte, it fails to support the government's case.... The thumb drive was removed 26 minutes *before* the reversion. And it was too small, and write-protected. Maybe the culprit is the one living at home on paid administrative leave.

Shroff: Let's look at Government Exhibit 1207-27. Mr Denton told you March 3 was the very day Mr Schulte felt the CIA had wronged him. But there's nothing in the evidence that Mr. Schulte viewed March 3, 2016 as particularly significant.

 Did he use a cell phone? Sure. But that's not what he's charged with. Your job as jurors is to put the government to these test. I told you at the beginning of the trial, Mr. Schulte was a difficult employee. That is all the government has shown in over the past four weeks....

AUSA Kamaraju: Ms Shroff spent a lot of time talking about this thumb drive, more time than we did. We told you he was nervous and wiped it even that it wasn't plugged in during the key time ... These is only one conclusion: Joshua Schulte is guilty of the charges.

Judge Crotty: We'll have a half an hour break then I'll instruct you on the law. 

Back when the trial set to begin February 3, a public hearing was held on January 27 about the US Attorney's requests to seal the courtroom for some witness and limited media attendance to a single pool reporter banned from reporting any physical characteristics of the CIA witnesses.

   On this issue, Inner City Press before the public hearing filed three one-page letters in opposition, the last one here. At the end U.S. District Court for the Southern District of New York Judge Paul A. Crotty asked Assistant US Attorney Matthew Laroche if his Office objected to live video feed to the SDNY Press Room, not showing the witnesses' faces. AUSA Laroche said no objection - which should mean feeds for this all other proceedings, when requested. On February 4, Inner City Press live-tweeted the opening arguments, here. And here a song.

 On February 24, while an FBI agent testified about ham-handed interview of Schulte, Inner City Press live tweeted thread here, the US Attorney's Office as it is required made available some exhibits, which we'll make available without paywall here on Patreon. But it still did NOT provide the audio files it played the jury. This violated Judge Crotty's order.

 So on February 24 Inner City Press wrote another formal letter to Judge Crotty, here, cc-ing the US Attorney's Office and Schulte's lawyers, urging release of the audio and video exhibits.

 And lo and behold on February 25 some were released: a video Inner City Press published here, and here, and a series of audio exhibits, for example here and here. Now five more here.
And the February 26 exhibits, in near real time, here.

  On February 26 the US put in as exhibits emails involving journalist Shane Harris, some arbitrage of whether to send to him or NYT, while opposing admission of the CIA memo about suspending Michael. Feb 26 thread here. So will Michael be a witness? Watch this site.

  Early on February 26, Schulte's lawyers wrote to Judge Crotty that "the defense is unable to call its computer expert, Dr. Steven M. Bellovin, as a trial witness. As we have previously explained, Dr. Bellovin, despite repeated requests, was never permitted access to the full 'mirror images' of the CIA’s ESXi and FSO1 Servers—images to which the government’s expert has long been granted full and unrestricted access." Grounds for appeal, if necessary?

 On Febuary 25, a witness was whisked away to the US Attorney's Office, letter below; this after the Press was told to leave the 14th and 5th floors, and the complaint letter still not put in the docket.

 More on Patreon here.

See Inner City Press filing into the docket on Big Cases Bot, here. Watch this site. The case is US v. Schulte, 17-cr-548 (Crotty).


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