By Matthew Russell Lee, Patreon Order
SDNY COURTHOUSE, Nov 29 – Whether any US government agency engaged in wiretapping not authorized by a court in connection with the prosecution of David Correia, Lev Parnas, Igor Fruman and Andrey Kukushkin came up near the end of a conference in the case on December 2, live-tweeted by Inner City Press here. More on Patreon, here. Inner City Press has opposed sealed filings - now possibly including Correia's pleas agreements whether docketed or marked.
On November 12, noting Inner City Press' advocacy to unseal, Judge J. Paul Oetken has ordered the full unsealing of Correia's declarations, in five business days. Full order now on DocumentCloud here, including: "After considering counsel’s justifications for sealing or redacting the declarations (see Dkt. No. 128),1 [FN1: The Court also takes notice of the letter filed by Matthew Russell Lee advocating for public access to these declarations. (See Dkt. No. 126)], the Court orders counsel to promptly file the unredacted declarations on the public docket."
And now, as advocated for by Inner City Press, here it is, on DocumentCloud here: "I am moving to withdraw because Mr. Correia has not paid me for any of the legal work I have performed for him. Mr. Correia retained me around the time of his arrest. Since that time, Mr. Correia and I have discussed fees on many occasions and he has expressed confidence that he would soon be in a position to pay for his legal representation. As recently as September 19, 2020, Mr. Correia said that he hoped he could soon pay his fees. But he has not been able to do so. Based on my conversations with Mr. Correia, and his continued inability to raise funds, I believe that his finances will qualify him for appointed counsel. 4. Until last week, an important factor in my decision to give Mr. Correia more time to pay was the very limited scope of the prior charge against him. It alleged his participation in a single conspiracy that primarily involved a Cannabis business and a small number of Fall 2018 political contributions in Nevada. 5. The charges against Mr. Correia changed dramatically this past Thursday, September 17, 2020, when the Government filed a superseding indictment (the “S1 Indictment”) that vastly expands the scope and complexity of charges against Mr. Correia. 6. Count Seven of the S1 Indictment newly alleges that Mr. Correia engaged in a securities fraud scheme involving an insurance-product company, claiming that 7 victims were defrauded in excess of one million dollars over almost 7 years based on false statements about the finances of that company.
7. Counts Two and Three of the S l Indictment further add charges that Mr. Correia made false statements and submitted falsified records to the FEC related to whether a different entity - a liquified natural gas company - was a bona fide business enterprise. 8. Given the breadth of the new allegations, this is now a much more extensive case than the one I had been retained to def end. 9. Regarding the case calendar, prior to the S l Indictment, the Court set a case schedule. Last week, the parties began discussing the need to request that the Court adjust that case schedule in light of the new charges, ongoing discovery, and the COVID pandemic. a. Discovery. The Government has made voluminous productions, but they are nonetheless ongoing. In a teleconference on Friday, the Government indicated that it had a "fair bit" of additional discovery to make, including a "sizeable email production" that it anticipated making in l O days. b. Motions. The Court had previously set a pretrial motions deadline of October 5, 2020. The parties are discussing the motion schedule in light of the SI Indictment, and I anticipate a request to adjourn those dates. c. Trial. A trial date was also set for February I, 2021. Though still almost five months away, there is a question as to whether this date will hold given current court procedures that severely limit jury trials in the district during the pandemic. 10. I informed the Government that I intended to file this withdrawal motion and that nonpayment is the basis of the motion. I have not otherwise provided them with the details in this declaration and I respectfully request that the Court accept it ex parte and under seal." So where is Avenatti's filing?
The logic also applies, inter alia, to the still withheld financial declarations of Michael Avenatti, here.
On October 29 Correia pleaded guilty to two counts. Inner City Press live tweeted it, here:
Correia's taxpayer paid lawyer, William Harrington of Goodwin Proctor, confirms he'll plead guilty. Turns out he prefers his name to be said "Korea," not Correia like belt in Spanish.
Judge Oetken making requires findings under the CARES Act. Will he do DPPA too?
Correia is pleading to Counts 2 and 7 of the superseding indictment: False Statements to the FEC and The Fraud Guarantee Scheme. Correia went three quarters of the way through college, he says. Never treated for mental illness. Gastro-intestinal is his only doctor
AUSA Doug Zolkind, insisting on calling him "Correia" like belt, not Korea, runs through the elements of each count. Judge Oetken: Are you a US citizen? Correia: Yes, your Honor.
Now the plea agreement that the US Attorney's Office has agreed to for Correia:
guideline sentence of 33 to 41 months. Fine of $15,000 to $150,000.
Judge Oekten: Tell me what you did.
Correia: I have a statement. My declaration said things that were false, I filed it to get FEC to end their investigation. I knew it was wrong. Judge Oekten: What about count 7? Correia: I have false info about Fraud Guaranty
Correia adds that he thought Fraud Guaranty was a great project. AUSA Zolkind: Did the defendant know it would be carried out by interstate wires?
Correia: They were in fact used. AUSA Zolkind says woulda used emails. He references Parnas and Fruman
AUSA Zolkind: They committed straw donations. Correia filed a false affidavit, about "substantial bone fide" investments. He knew they were false, for the $325,000 donation. Also he lied about Fraud Guaranty, which had no operations nor insurance products.
AUSA Zolkind: 7 victims invested in Fraud Guaranty, between $250,000 and $500,000 each. But this paid Parnas' rent and luxury cars, retail store purchases. Multiple meetings were held in Manhattan. Correia's lawyer: Mr. Correia got very little of the money.
Judge Oetken: Mr. Correia, I hereby accept your guilty plea. For sentencing, how about February 12? Correia's lawyer wants it earlier. Judge Oetken: February 8, at 11:30 am, then. AUSA Zolkind: The plea agreement says he withdraws mandamus in 2d Cir.
AUSA Zolkind wants to file plea agreement under seal. Judge Oetken: I don't usually put plea agreements on the docket. Then people could figure out who's a cooperator.
AUSA Zolkind: But press could request it. So we want it redacted.
Judge Oetken: I won't mark it as a court exhibit. Adjourned.
[Inner City Press: The plea agreement is clearly a judicial document, whether docketed or not, whether made a court exhibit or not (these may be seen as evasions of transparency.]
On September 17, a superseding indictment "LEV PARNAS and DAVID CORREIA were charged in a Superseding Indictment with conspiring to commit wire fraud in connection with their efforts to raise funds ostensibly for their business, “Fraud Guarantee.” The Superseding Indictment also includes additional campaign finance charges against the defendants. In October 2019, PARNAS, CORREIA, IGOR FRUMAN, and ANDREY KUKUSHKIN were charged in a four-count indictment alleging that each of the defendants conspired to violate the ban on political donations and contributions by foreign nationals. In addition, PARNAS and FRUMAN were charged with conspiring to make contributions in connection with federal elections in the names of others, and with making false statements to and falsifying records to obstruct the administration of a matter within the jurisdiction of the Federal Election Commission (“FEC”). The Superseding Indictment returned today – in addition to charging PARNAS and CORREIA with conspiracy to commit wire fraud – charges CORREIA with making false statements to and falsifying records to obstruct the administration of a matter within the jurisdiction of the FEC; charges PARNAS, FRUMAN, and CORREIA with soliciting a foreign national to make donations and contributions in connection with federal and state elections; and charges PARNAS, FRUMAN, and KUKUSHKIN with aiding and abetting the making of donations and contributions by a foreign national in connection with federal and state elections. The case is assigned to U.S. District Judge J. Paul Oetken in the Southern District of New York. Trial is currently scheduled for February 1, 2021."
Then, this: "On September 21, 2020, counsel for Defendant David Correia submitted to chambers a motion to withdraw as counsel for Mr. Correia, with declarations addressing the reasons for their motion to withdraw. They request that the declarations be filed under seal and ex parte, “as they pertain to Mr. Correia’s relationship with counsel.” Any redaction or sealing of a court filing must be narrowly tailored to serve whatever purpose justifies the redaction or sealing and must be otherwise consistent with the presumption in favor of public access to judicial documents. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006). Counsel’s representation that the declarations “pertain to Mr. Correia’s relationship with counsel” is insufficient to meet that standard. To the extent that the declarations include privileged or other confidential communications between counsel and Mr. Correia, they may properly be redacted. However, the facts that Mr. Correia has not paid his attorneys’ bills and that he may qualify for court-appointed counsel are not privileged and do not, in the Court’s view, meet the Lugosch standard. Accordingly, counsel for Mr. Correia (1) shall promptly file their motion to withdraw on the public docket, (2) shall, on or before September 25, 2020, submit to chambers proposed redactions of their declarations, together with a letter explaining how such redactions satisfy the Lugosch standard, and (3) shall promptly work with Mr. Correia on the retention of replacement counsel and/or preparation of a financial affidavit in support of court-appointed counsel. The Court will then schedule a conference to address counsel’s motion to withdraw."
Inner City Press filed, now docketed, this: "Hon. J. Paul Oetken, United States District Judge Southern District of New York, 40 Foley Square, New York, NY 10007 Re: US v. Correia, 19-cr-725-3 (JPO) - Motion for Leave To Be Heard / Press Request To Unseal Dear Judge Oetken: On behalf of Inner City Press and in my personal capacity, I have been covering the above-captioned case since it was filed. This concerns documents filed under (requested) seal in the case, 19-cr-725. Defense counsel have "request[ed] that this motion be accepted ex parte and filed under seal." This is opposition. Formally, PLEASE TAKE NOTICE that Inner City Press and its undersigned reporter, in personal capacity, will move this Court before Honorable J. Paul Oetken, U.S. District Judge for the Southern District of New York, at a date and time directed by the Court, for entry of an order granting permission to the heard on/and the unsealing of documents filed and/or submitted in 19-cr-725 (JPO), pursuant to Docket No. 122 in that case and the Court's inherent power, and such other and further relief as the Court deem just and proper. 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). Recently in SDNY Magistrates Court financial information about defendants has been read out in the public record, including for the appointment of Federal Defenders. See, e.g., US v. Castro, et al., 20-mj-8994 (Freeman) & here.
Those and other defendants whose financial information have been disclosed including in Magistrates Court this summer had the same arguments as made by counsel to defendant Correia, that the information might be used against them. And yet the other defendants' information was disclosed. As stated in US v. Harris, 707 F.2d at 663, facts should be determined through adversarial proceedings. While beyond the scope of this letter, the Court could limit the use in this case by the prosecution of the unsealed information, without unnecessarily overriding the presumption of public access. 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 here and here. Inner City Press recently 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. 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. Inner City Press has covered the case(s) against Mr. Correia (and Mr. Parnas, et al.) for some time. See, e.g., October 2019, here.
In another pending case, US v. Edwards, 19-cr-64 (GHW), the Office had initially said that documents submitted by the defendant (described as the leaker of Paul Manafort's Suspicious Activity Reports) should be put in the public docket. Then, while Inner City Press is pursuing that, the US Attorney's Office has stopped pushing. See also, here and here [more on this forthcoming.] The documents at issue here should not be sealed and should be made available. Please confirm receipt & docket this timely responsive filing. Thank you. Respectfully submitted, /s/ Matthew Russell Lee, Inner City Press."
Now on September 29, this - Correia has gotten his free / taxpayer funded lawyer, but still no action on Inner City Press' docketed opposition to the sealing: "Attorney update in case as to David Correia (3). Attorney (CJA) William Joseph Harrington for David Correia added. Attorney (Retained) Jeffrey E. Marcus terminated." CJA means Criminal Justice Act.
Back on February 3 SDNY Judge Oetken began the scheduled conference by shooting down the FISA violation arguments, citing decisions by the Second Circuit and his fellow SDNY Judges Edgardo Ramos and Paul Engelmayer. He asked the prosecutors about the progress of discovery.
There are still 20 devices not "cracked," although it is complicated because with subpoenas for iCloud accounts, multiple devices' information is revealed.
A trial date of October 5 was set, with another conference if necessary penciled in for July 16 at 2:30 pm. Afterward in front of 40 Foley Square Parnas' lawyer Bondy snarked at the impeachment trial as a trial by friends; Parnas said he's trying to get the truly about Trump and Giuliani and Ukraine out, but declined to answer if he is cooperating. Then he got into a big black car, saying he was glad to be back in New York. Inner City Press Periscope video here.
Inner City Press said it would be there- and it was. The case is US v. Parnas, et al., 19-cr-00725 (Oetken).
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