By Matthew Russell Lee, Exclusive Patreon
BBC - Guardian UK - Honduras - The Source
SDNY COURTHOUSE, Nov 10 – Virgil Griffith, charged with violating North Korea sanctions in connection with a crypto-currency conference there, sought to get the case moved for lack of venue out of the U.S. District Court for the Southern District of New York.
This emerged at a telephone conference in the case on May 18. Griffith's defense lawyer Brian E. Klein said he is ready to file a motion on venue as early as this Friday May 22, based on "ex parte, in camera" filings he made with SDNY Judge P. Kevin Castel.
Inner City Press, which has covered the case from Griffith's first appearance in the SDNY Magistrates Court to his Christmas holiday legal moves to get released to home confinement in Alabama, immediately sought the still-sealed documents in this criminal case, see below.
And on November 10, Inner City Press went in person to the proceeding in Judge Castel's Courtroom 11D. It was alone in the gallery; in the front were the three ASUAs, Mr. Buckley for Griffith, and on the side CISO Hartenstein, who performs the same role in the CIA leaks case US v. Joshua Schulte.
The government said it won't make its CIPA motion under March 19. Buckley point out that is more than a year after Griffith was arrested, and that Griffith is seeking FBI and other information.
Judge Castel replied that he will bring the parties in on December 22. He said the public portion of the CIPA Section 2 conference was over; he told Mr Buckley he did not have to wait around (and Inner City Press, by implication, either). But what are the rights of the press and public with respect to these CIPA sealings? Watch this site.
On July 20, Klein requested for Griffith restored access to the Internet, telling Judge Castel in letter here on Patreon that while on leave from Ethereum another unnamed company has offered to make him a consultant, but that Klein would wants it name sealed : "While he has been placed on leave by his former employer during the pendency of these charges, he has been offered one consulting contract, which can be submitted to the Court under seal."
On July 24 Judge Castel held a hearing on this, which Inner City Press live tweeted, below.
Now on November 6 the US Attorney's Office has filed an opaque letter about an upcoming closed presentation of national security information: "Re: United States v. Virgil Griffith, 20 Cr. 15 (PKC) Dear Judge Castel: As the Government has notified the Court and defense counsel, the Government intends to file a motion pursuant to the Classified Information Procedures Act (“CIPA”) in this case with respect to certain classified information. For the Court’s ease of reference in anticipation of the CIPA Section 2 conference scheduled for November 10, 2020, the Government writes to provide further information about the procedures under CIPA that will govern the anticipated motion. CIPA governs the discovery of classified information in federal criminal cases. See United States v. Abu-Jihaad, 630 F.3d 102, 140-41 (2d Cir. 2010). Congress enacted CIPA to enable the Government to fulfill its duty to protect national security information, while simultaneous ly complying with its discovery obligations in federal criminal prosecutions... Should classified discovery prove necessary, the Government will provide defense counsel and the Court with a proposed CIPA § 3 protective order, and coordinate with defense counsel to secure any necessary clearances. See, e.g., United States v. Schulte, No. 17 Cr. 548 (PAC) (SDNY) Dkt. No. 61. The Court may appoint a Classified Information Security Officer (“CISO”) in this matter to facilitate these procedures." We'll have more on this.
On October 22 Griffth filed motions for information: "Mr. Griffith’s motion to compel seeks an Order directing the government to produce the following: a. All internal materials of the Department of Treasury’s Office of Foreign Asset Controls (“OFAC”) regarding or in connection with Mr. Griffith’s trip to the Democratic People’s Republic of Korea’s (“DPRK”); b. Confirmation of the identity of an individual identified by the government as “Witness-2”; and c. Materials from OF AC, Department of Justice ("DOJ"), Federal Bureau of Investigation ("FBI"), Central Intelligence Agency ("CIA"), and National Security Agency (''NSA") related to the DPRK's cryptocurrency capabilities. Despite good faith efforts, the parties have reached an impasse on each of the above topics that are the subject of Mr. Griffith's motion to compel. 4. Mr. Griffith's motion for a bill of particulars seeks an Order directing the government to produce the following: a. a specific recitation of the "services" Mr. Griffith is alleged to have provided, or caused to be provided, in violation of law, including the alleged services involved, the identification of others involved, the manner in which such services were provided in violation oflaw, and the amount and source of each payment for such alleged services; b. the identities of all known co-conspirators; and c. all relevant acts or events that occurred in this District. Despite good faith efforts, the parties have reached an impasse on each of the above topics that are the subject of Mr. Griffith's motion for a bill of particulars." Full letter on Patreon here.
On July 30, Judge Castel denied Griffith's venue motion: " OPINION AND ORDER as to Virgil Griffith re: [43] MOTION to Dismiss for Lack of Jurisdiction filed by Virgil Griffith. Defendant Virgil Griffith is charged with one count of conspiracy to violate the International Emergency Economic Powers Act (IEEPA), in violation of 50 U.S.C. § 1705. For these reasons, Griffiths motion to dismiss the indictment for improper venueis DENIED. The Clerk is directed to terminate the motion (Doc 43). (Signed by Judge P. Kevin Castel on 7/29/20)(jw)."
Judge Castel's full order also states that "the defense will be free to contest the government’s evidence concerning venue and present its own theory, should it choose to do so. Subject to any motions for judgment as a matter of law, it will be for the jury to decide whether the government has established venue by a preponderance of the evidence. The Court will be in the best position to decide whether the drawing of an inference of receipt or access in this District is reasonable from the totality of the evidence at trial."
Griffith's lawyer Keri Axel says now Virgil's cold wallets have been secured, it's time to let him use the Internet. Cites COVID19 and her own canceled international vacation.
Griffith's lawyer says Internet restriction has wrecked havoc on his ability to work. "He will be on leave from Ethereum but has been offered a consulting contrast" which she offers to show Judge Castel in camera - without the public or press seeing.
Griffith's lawyer: He does back-end work on people's servers. His employers would want their data protected - so, no monitoring, it's not secure. Note: Inner City Press has covered another Judge Castel case in which loosening was denied, here.
AUSA Krouse: The defendant remains a risk of flight. The evidence in this case has grown since we were before Judge Broderick [Inner City Press' scoops at turn of the year.] Judge Castel: If monitoring of Internet limited to risk of flight? Or some other reason?
AUSA Krouse: He developed a browser for the Dark Web... The defendant has sophisticated knowledge of technology, and a willingness to use it to help a rogue regime, North Korea, with crypto-currency
AUSA Krouse: He offered to ship a rig to help North Korea mine crypto-currency. Griffith's lawyer: I will jump in here -- Judge Castel: AUSA Krouse, are you finished? AUSA: Yes. Griffith's lawyer: They never argued danger to the community
Griffith's lawyer: He's not accused of using his computer skills for harm - he gave a lecture, that's all. He has a PhD, he had a research interest in the Dark Web. It's used for human rights purposes, to access to Facebook. He got kicked out of the TOR project
Griffith's lawyer: He has cooperated with law enforcement about the Dark Web. He helped Ann M. Kempf (sp). He's never been accused of doing anything wrong with his skills.
Griffith's lawyer: If he were the Doctor Evil they make him out to be, he wouldn't use his home computer to do it. I'm sure you're aware of a burner phone, a burner computer, a public spot, an ISP... He can't do Zoom calls with counsel. [Yeah, that's secure - although another SDNY proceeding on July 24 took place on Zoom.]
Griffith's lawyer: He can't order PostMates from his phone. Judge Castel: Here's my concern. The defendant represents a danger to the community. He assisted the DPRK [North Korea] in learning how crypto currency works. He proposed an Ethereum node in DPRK
Griffith's lawyer: It's the government's burden to prove he is a danger. We don't want to tip our full hand. We are familiar with briefing before your Honor in SEC v Telegram [Inner City Press covered that as well, here]
Judge Castel: I find he is a danger. I have reviewed the transcript... Court reporter: I think we lost the Court.
Judge Castel: I'm back. My phone's battery ran out due to the length of our proceeding but I have secured another one. This man has the ability to respond to detailed question with knowledge that poses a danger. Modest restrictions of Judge Broderick address that
Judge Castel: The applicant to modify conditions is denied. Anything more from the government? Griffith's lawyer: Your Honor, I have a question. Judge Castel: Do you have an application? Griffith's lawyer: Can he use Internet beyond the order? Can he do searches?
Judge Castel: There's no confusion on this - your application says he can only email with counsel. That's what I've ruled on. Klein: I have a point about the motion schedule. Do they plan to supersede? If so, have it be a month in advance.
Judge Castel: that's between US and grand jury. You could argue for change in schedule. Thank you, we are adjourned.
The day above on July 23, Judge Castel held arguments on venue. Inner City Press live tweeted it, below.
And, hours after the proceeding, AUSA Ravener submitted a "proposed Protective Order" to govern 3500 material in the case - basically, withholding all of it. We'll have more on this.
Griffith's lawyer Klein complains that only at 11 pm last night they received discovery about search warrant to North Korea's Mission to the UN - regarding which Inner City Press won unsealing.
Klein: There is no IP evidence of this email. We asked them for a copy of the email. We are very concerned about this late disclosure - Judge Castel: What's the late disclosure?
Klein: They sought the content of the e-mail. [Inner City Press: what are the provisions for access to the email account of a country's UN mission? Also, Klein's seeming discovery complaint is really an argument the March 6, 2019 email was never read in SDNY]
Judge Castel: Doesn't the government have a right to put on its evidence at a trial and ask the jury to draw an inference? And you can oppose it? Klein: Your Honor does not need to wait for a Rule 29 motion. Judge Castel: But the indictment alleges venue.
Klein: Our replies argues we don't have to get to a bill of particulars. Judge Castel: Let's go back 50 years. Before e-mail. There may be no proof that an individual received a letter. But upon testimony that a letter was addressed to NY, jury could find venue Judge Castel: We'll have to hear what goes on in the mission of the DPRK in NY. [This, Inner City Press wants to hear. Who will testify?]
Judge Castel: Isn't that why a trial is necessary? Klein: E-mail is different. [Sound a dog barking, court reporter complains]
Klein: That is not my dog. I don't have a dog, and I didn't adopt one during the pandemic.... With mail, there is only one address. With email, it's out in the ether - even your Chambers. It could be accessed from anywhere. It's like a phone number.
Judge Castel: Do you know what the evidence is the government is going to put on at trial? Klein: No, I don't... Why don't you ask them for it? Our client should not have to go to trial in a district in which there is improper venue, both in terms of time & cost.
Klein: It is appropriate for your Honor to dismiss this indictment at this time. Judge Castel: Let me hear from the government. Crickets.
AUSA Krause: I was on mute. This is a fact question for the jury. The defendant sent an email to the DPRK mission on March 7, 2019, to get a visa. On April 18, 2019, the DPRK approved his travel and gave him a visa.
Krouse: The DPRK's sole mission in the US is in New York. We'll make these arguments to the jury. This is a fact question. On the search warrant, we got it on June 5, 2020. We found the data didn't contain anything before Sept 2019. So it doesn't show anything
Judge Castel: We don't live in a civil law country. If a reasonable inference can be drawn, it's up to the jury... I think you're grasping at straws. I'm not impressed with your argument. Klein: What's not the argument I'm trying to make.
Judge Castel: I don't think your argument is consistent with Second Circuit case law. Klein: Now I've lost my train of thought. And maybe it's a train that should have been lost. The visa was issued in Beijing, not in this district.
AUSA Krouse: He emailed the DPRK Mission in Manhattan. [As aside: Inner City Press has been there, a suite of drab rooms on 43rd Street, for surreal press briefings. More another time.]
Judge Castel: Emails sent to this address, two thirds were access from outside the district. It could be some in Vermont. AUSA: Even if an IP address seems to be outside of NY doesn't mean that it is. There are ways to mask it. VPNs. We can have witnesses.
AUSA Krause: The staff of the Mission are limited. [Yes, it is 25 miles from Columbus Circle. Applies to Syria, too - their Ambassador was turned down to travel to Princeton NJ. And UN staff from Iran gets US permission to go to the Hamptons.]
Klein: It could have been accessed from North Korea. The IPs are Virginia, Ireland, Azerbaijan... and Portland, Oregon
Klein: Sure, it may have been the intention the email come to New York. But it had to be received and acted on in the SDNY. Usually they have a cooperator to say, I was on 98 St. [But of court NoKo is not going to cooperate].
Judge Castel: By your position, there's no way to prove venue. I'll reserve judgment. Let's move on to your bail application. Klein: I haven't read their response. [Inner City Press already reported on it, below]
Bail issue here deferred...
AUSA Krouse: Let's talk motion schedule. They're going to move to suppress, too. Klein: We're still trying to figure out how much more discovery we'll get. We were thinking about October. Motion to dismiss, failure to state a claim. Judge Castel: Really?
Klein: Well, insufficient on its face. Motion to suppress... like US v. Wei (sp), before Judge Nathan... Court report: Who's speaking? Mister Buckley? Klein: It's Brian Klein again. We might file a motion for a bill of particulars.
Judge Castel: OK - motions due October 8. And your reply due November 19. Time excluded until Nov 19? AUSA Krouse: We move to exclude time under the Speedy Trial Act. Judge Castel: Any objection? Klein: No. Judge Castel: This outweighs the interest of the public.
Judge Castel.. to a speedy trial. AUSA Krouse: There will be some classified information litigation in this case. CIPA. We're trying to cooperate with agencies. A motion will be filed. Judge Castel: That seems fine.
AUSA Krause: We're talking about another protective order, for 3500 material. Judge Castel: Anything further? Thank you for the arguments.
Earlier on July 23 - an hour before the above-tweeted conference in the case, the US Attorney office has opposed, offering these quotes from the North Korea conference: "Hello everyone, I know it’s late in the day so I’ll try to make this fun. So the most important feature of blockchain is that they are open. And the DPRK can’t be kept out no matter what the US or the UN says. . . . One of the more interesting things is that blockchain allow greater self-reliance in both banking and contracts. So you can have contracts without an authority. . . . So you heard about with blockchain the USA can’t stop your payments. That’s like, that is step 1, and step 2 is the UN can’t stop agreements. So if the DPRK makes agreements with someone, or if an individual does, it’s um, you can um you don’t have to go to a court." They quote Griffith on text message: "on October 2, 2019, the defendant, in a text exchange with family members, noted that he might be fired from his cryptocurrency company and stated that, if he was, he might instead “setup a money laundering company in North Korea.” We'll have more on this.
Judge Castel to his credit the same day asked each side's counsel to respond: "The Court has received an application from Inner City Press for the unsealing of certain applications by the defendant for the issuance of subpoenas. The parties shall respond to the application by May 22, 2020. If there is no objection, the Court will order the applications and any resulting order unsealed."
On May 29, Judge Castel ruled: "Defendant is directed to file forthwith on ECF his ex parte and in camera applications for subpoenas pursuant to Federal Rule of Criminal Procedure 17. (Signed by Judge P. Kevin Castel on 5/29/2020) (ap)."
And now they have been filed: a March 17 letter and affirmation, and the subpoena itself, for "A list of any and all IP addresses associated with the email address dprk.un@verizon.net, and any logs or similar records of access to the email address dprk.un@verizon.net, for the period from November 1, 2018 to October 30, 2019."
Inner City Press has uploaded the application, affirmation and subpoena on Patreon here.
An aside: the application of diplomatic immunity and/or the Vienna convention to this subpoena, and Verizon's response to it, remain UNclear.
On June 1, Griffith's lawyer filed a motion to dismiss for lack of venue, stating that Griffith's email to the North Korea Mission in New York, responded to, might not have been "received" in New York. Inner City Press is tweeting the photo here. Watch this site.
On May 28, from Judge Castel again to his credit, this: "ORDER as to Virgil Griffith. The government advises that the defendant consents to public disclosure of his ex parte and in camera application for a subpoena pursuant to Federal Rule of Criminal Procedure 17 (the Application) but does not consent to advance disclosure of the Application to the government. To enable the government to intelligently state its position on public disclosure, defendant shall transmit the Application to the government by 1 p.m. today, May 28, 2020. The government shall state whether it has any objection to public disclosure by 1 p.m. on May 29, 2020. The Court will thereafter rule on whether the Application should be publicly filed (Signed by Judge P. Kevin Castel on 5/28/20)(jw)." Watch this site.
The case is US v. Griffith, 20-cr-15 (Castel).
