By Matthew Russell Lee, Patreon Video Podcast
BBC - Guardian UK - Honduras - ESPN Vlog
SDNY COURTHOUSE, August 11 – Just after the indictment of electric vehicle maker Nikola's founder Trevor Milton was unsealed on July 29, 2021 a press conference was held in the Southern District of New York prosecutors' office. Inner City Press went and asked about the SEC complaint's reference to Milton targeting "Robinhood investors." Video here.
US Attorney Strauss and her SEC colleague (on the job for all of one week) both deferred comment on particular companies or phenomena like Robinhood, or Elon Musk, or SPACs. But it seems there will be more prosecutions coming - including in the crypto-currency space?
On September 15, 2021 the assigned District Judge Edgardo Ramos held an oral argument. Milton wants to move the case to Utah or Arizona, with a sealed motion. (Manafort's lender Steve Calk asked the same, to move to Chicago, which was denied). On September 15 Inner City Press live tweeted here (and podcast here)
In March 2022, Milton withdrew his Second Circuit appeal of venue. On March 22, the US Attorney's Office filed a joint schedule: "Dear Judge Ramos: The Government respectfully writes to advise the Court that the parties have, following the dismissal of the defendant’s interlocutory appeal, conferred and agreed to a revised schedule with respect to the exchange of certain material and information prior to and during trial pending confirmation of the currently scheduled trial of July 18, 2022, as a firm trial date by the committee of the Southern District of New York charged with assigning trial dates. 1 The schedule is as follows: June 6, 2022: The Government provides to the defendant material covered by 18 U.S.C. § 3500, including material pursuant to Giglio v. United States, 405 U.S. 150 (1972). Full letter on Patreon here.
On August 11, Milton's lawyers filed: "to invoke this Court’s power, under Rule 26.2(c), F. R. Crim. P., to “inspect” certain materials in camera, and to make rulings on the question whether those materials constitute, in whole or in part, a “statement” of a witness that the defense must produce to the government. As the Second Circuit has held: “When it is doubtful whether [certain materials] are subject to discovery [under Rule 26.2], the [party] should submit them to the trial court for an in camera determination[.]” United States v. Scotti, 47 F.3d 1237, 1249 (2d Cir. 1995). * * * Mr. Milton has provided the government with a list of witnesses whom Mr. Milton reasonably expects to call in this case. That list includes Dane Davis, formerly employed as the Chief Technology Officer at Nikola. On two occasions in 2022, certain of Mr. Milton’s counsel met with Davis. Counsel did not take notes during those meetings. Mr. Milton now submits, in camera, two attorney memoranda, each of which (a) was written by counsel after the meeting, (b) runs to three pages, and (c) reflects in part the mental impressions of counsel regarding those meetings." Full letter on Patreon here.
Meanwhile, Judge Alvin K. Hellerstein has stayed the SEC v. Milton case...
On June 20 - Juneteeth - Milton's lawyers filed their proposed voir dire questions for jurors, and their request to charge. They want jurors asked if any relative or close friend ever worked in the automotive or heavy trucking industry? Any experience in hydrogen fuel cell or battery technology? Are you a risk taker? Are you short seller? What platforms do you use to trade - E*Trade, TD Ameritrade, Charles Schwab, Robinhood..."
On June 22, the prosecutors informed Judge Ramos of a superseding indictment with a new charge: "The Government respectfully writes to advise the Court that the grand jury returned a superseding indictment earlier today in the above-referenced case, and to request that time be excluded under the Speedy Trial Act until the trial date of July 18, 2022." New indictment on Patreon here.
Then Milton asked for a 30 day adjournment and Judge Ramos set a hearing. The US responded that as a courtesy they would agree to a week, no more: "the Government would not object to a one-week adjournment of the trial, no delay is warranted and certainly an adjournment of greater than one week would be contrary to the 'ends of justice. Letter on Patreon here.
The government followed this up in Sunday letter docketed on Monday, June 27: "Dear Judge Ramos: The Government requests that the Court impose a deadline of July 1, 2022, for the defendant to provide clarity to the Government and the Court regarding whether the defendant intends to pursue an advice of counsel defense, and the precise subject matter about which he will assert that defense. As set forth in the Government’s motions in limine (Dkt. No. 121 at 21-22), in recognition of the practical and logistical difficulties of addressing advice-of-counsel notice, disclosure, and legal issues mid-trial, courts have routinely required a party considering whether to mount such a defense to give notice of its decision before trial." Full letter on Patreon here.
Later on June 27, Milton's counsel reiterated that a 30 day adjournment is needed: " demand a sharp pivot in trial strategy, which to date has focused on so-called “retail investors” who bought stock on Nasdaq allegedly based upon Mr. Milton’s public statements on “social media and in television and podcast interviews” and on Mr. Milton’s alleged motive to increase the price of Nikola stock. See Indictment ¶¶ 22, 26. Those public investors, unlike the private seller of the real property in Count Four, had no direct interactions with Mr. Milton. A continuance of 30 days is warranted."
On June 29 Judge Ramos held a proceeding, at which the trial was pushed back to September 12. Inner City Press live tweeted here and below, vlog here
On July 11, Nikola moved to intervene. Full 19 page memo on Patreon here.
In late July, Milton submitted his opposition to the request of Nikola, whose shareholders meeting he's twice now got pushed back. Milton's filing on Patreon here.
On August 1, Nikola replied: "Milton claims that Nikola has already waived privilege over the specific communications he seeks. (Opp’n at 8.) But Milton again offers no support or basis for this supposed waiver other than name-calling. (See id. (calling arguments “disingenuous” and “misleading” but still failing to adduce any evidence whatsoever of the alleged “intentional disclosures both prior and subsequent to the Stipulation”).) Milton again points to proffer statements by an employee that relate to the “review and approval process” for press releases and other types of public communications (id.), but that is a red herring. The existence or nonexistence of a “review and approval process” at a company is just a fact; it is not privileged, and, as a result, allowing an employee to speak about such a process in a meeting with the Government cannot waive privilege. While legal advice provided during such a process might be privileged, Milton offers nothing to suggest that Nikola employees disclosed actual legal advice as opposed to information about general processes during their proffers. They did not. D. The Communications at Issue Do Not Implicate Milton’s Right to Present a Defense. Finally, Milton claims in a paragraph at the end of his brief that he has a constitutional right to ask questions that call for the privileged information at issue. But he does not explain what the relevant constitutional standard even is, and, as discussed in Nikola’s opening brief, multiple courts have called into question the primary case on which he relies. (See Nikola Mot., Dkt 139, at 12-13 (noting criticism of United States v. W.R. Grace, 439 F. Supp. 2d 1125 (D. Mont. 2006) in this District).) But whatever the standard, this case cannot satisfy it for the reasons Nikola has already discussed. Milton is already able to elicit testimony regarding legal advice he personally received. Testimony about advice he did not receive simply cannot rise to the level of necessity that its omission would cause a constitutional due process violation." Nikola filing on Patreon here. Watch this site.
From June 29 -- Ok - Trevor Milton of Nikola just pled not guilty to new charge. Judge Ramos will get into trial date. Milton's lawyer: The audio recording of Milton was illegal. There are motions that can be directed at it.
Milton's lawyer Marc Mukasey: There's potentially a venue issue here. This is a curveball from left field. Judge Ramos: Mr Milton purchased the property? Milton's lawyer: He did.
Judge Ramos: The case has been about trucks. Why is this ranch count added on? AUSA: Mr Hicks was misled like the wider public. Judge Ramos: Why not just make him a witness?
[Milton hands his lawyer a note.]
Lawyer: We think this Hicks guy was up to no good, in ways the US msy not be aware of. We need time. Judge Ramos: Adding this is not unusual. Milton's lawyer: Hicks is trying to take advantage of this proceeding. [Now Milton has taken off his mask and is whispering animatedly to his lawyer.]
AUSA Roos: They knew about the civil case in March- Milton's lawyer: That's just incorrect. AUSA Roos: We could give them a week.
Judge Ramos: Mr Milton has been pushing for a Speedy Trial. So their request is credible. I will grant an adjournment. But how long? August is tough. [Milton and counsel and man on a crutch go into hall]
They're back. Milton's lawyer: We'd like September. Judge Ramos: Sept 12.
Inner City Press will continue to cover the case.
Back on July 29 at 12:30 pm Milton was presented before SDNY Magistrate Judge Sarah Netburn, and freed on consent, on $100 million bond. Inner City Press was in the Magistrates Courtroom and live tweeted it, here: (and podcast here)
From July 29: Lawyers whispering about a property in Utah. Seems he'll be freed on bond.
In the front: Milton and four defense lawyers. Three @SDNYLIVE prosecutors, including Jordan Estes and Nick Roos. Two Marshals. Awaiting Magistrate Judge Netburn. All rise.
Milton surrendered at 8 am. Case is assigned to District Judge Edgardo Ramos (who's also in One Coin cases.)
Milton pleads not guilty. Freed on $100 million bond. Less than Tom Barrack's $250 million
Milton can travel Utah, Wyoming, Idaho, Arizona, Virginia and DC (for lobbying?) No contact with investors unless Milton has a relationship with them. Morgan, Utah property appraised over $30 million (contrary to the Pre Trial Services report)
Milton's lawyer says his income is down, no $50 million in bank. Judge Netburn approved free today on $100 million bond. Surrender guns.
The case is US v. Milton, 21-cr-478 (Ramos)
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