By Matthew Russell Lee, Patreon Thread
Honduras - The Source - The Root - Podcast
SDNY COURTHOUSE, Sept 10 – Sayfullo Saipov has been facing a trial that may result in the death penalty for killing eight people with a van along the West Side Highway.
On June 3 U.S. District Court for the Southern District of New York Judge Vernon S. Broderick held a conference on the case and Inner City Press live tweeted it, here and below.
The upshot? Federal Defenders do not want to travel to Uzbekistan despite a State Department authorization. And they want to wait to see if new Attorney General Garland issues a policy against seeking the death penalty. It was strongly implied that Saipov would plead guilty to life without parole. Podcast here.
On August 6 the US wrote to Judge Broderick that depositions in Uzbekistan in the Fall of 2021 would be fine. But Saipov's Federal Defenders said not so fast, the government there wants to sit in and anyway, new SDNY COVID policy amid the Delta variant will not allow enough jurors. They note that "over 50 countries are currently at Level 4 of the State Department's travel advisory, including the UK, Ireland, Greece, the Kyrgyz Republic, Portugal, Cuba, South Africa, the BVI, the Maldives and the Netherlands." And yet the UN still plans, now as of September 10 despite a statement from the presumptive new Manhattan BP Mark Levine, an "honor system" no-vax General Assembly week on September 21. Speakers' list here.
On August 12, Judge Broderick has sided with the defense on this: "ENDORSEMENT: Given the low vaccination rate in Uzbekistan and the rising COVID-19 infection rate, I find that it is premature to schedule Rule 15 depositions at this time. Within 30 days, the parties should file a joint status letter updating me on their discussions regarding alternate locations for the depositions and the protocol that will be used. The parties should inform me whether any of the countries proposed by defense counsel are viable options. The parties are also directed to update me within 30 days regarding defendant's potential deauthorization request."
And now on September 10, the eve of 9/11, the US Attorney's Office has filed a letter saying it is reviewing unnamed countries for "travel conditions in light of the pandemic." Watch this site.
The June 3 thread: Assistant US Attorney says the US State Dep't has approved discovery trip to Uzbekistan including "no quarantine when back."
Judge Broderick asks, Even if it's mission critical, aren't the health risks the same? AUSA: Things seem to be getting better.
Judge Broderick: What if the alert is still in place in June when the parties might sit for the Rule 15 deposition?
AUSA: If things change, we'll adjust. Sure, it's Level 4. But the State Department has approved it.
Judge Broderick: Have the Federal Defenders ever before gone to a "Do Not Travel" location? AUSA: Yes, there's an EDNY case...
AUSA: People in Uzbekistan are paying enough attention to our courthouse that they write to us and say, We say that you have big courtrooms ready for trials. So we want to move on this.
Federal Defender: I am not going to send people there, with other international organization saying Don't go there, even if you're vaccinated. So I don't think it makes sense to schedule aspirational dates, it would impact the court generally.
Federal Defender: We also have a different Administration, which will be reviewing all capital cases. We would like time to consider applying for de-authorization.
Judge Broderick: Is there any reason the parties can't now complete the discussion of the protocols taking into account both COVID and the travel danger issues?
AUSA: Yes, those discussions should be had. And, we will do the Rule 15 somewhere outside of Uzbekistan, perhaps Kazakhstan.
Judge Broderick: At some point you just have to make a decision. How much difference is there going to be, between Uzbekistan and Kazakhstan?
Judge Broderick: It seems that the defense doesn't want to do it under the requirement that the government of Uzbekistan may require. Let me hear from the government, then I'll address the deauthorization issue.
AUSA: We was not aware there were still these issues
AUSA: We didn't know that Federal Defenders had issues with Kazakhstan, too. It's disconcerting. We were almost ready, back in March [2020]. Mr. Patton, from his public and non-public sources, probably knows more than I do about the DOJ process
AUSA: There are been some applications made to the DOJ. There is a protocol in place for it to happen. And we submit, it should happen now.
FD Patton: On logistics, we talked about this last year. I can point to the transcript. And also off the record.
FD Patton: The US Attorney's Office declined to talk with us about it and said, Let's take it to the judge. We want to petition for de-authorization, but we're waiting to see if there is a policy change coming.
Patton: If the government is willing to resolve this case with an offer of life without parole, we would like to go down that path. Judge Broderick: Policy changes can take some time. Do you know when it's going to happen?
Judge Broderick: There is a process in place for de-authorization. You could apply in this case. What is your time frame?
FD Patton: I don't know when DOJ will issue new guidance. It came up in AG Garland's confirmation process. But I don't know when
FD Patton: Let me put a finer point on it. If the death penalty were off the table, I don't think there would be a questionnaire. I don't think there would be a trial.
AUSA: We can't wait for a policy change. What if it comes and then Mr. Patton says he's hearing rumors that might change? Judge Broderick: On the de-authorization issue, I need to hear more. My inclination is to tell you, Mr. Patton, to move forward with applying
Judge Broderick: Is the DOJ machinery, in this Administration, up and running? Can they decide on [de-authorization] applications submitted? I'd like the defense to explain what prejudice it would suffer by applying. 2 weeks, meet & confer
Judge Broderick: I'll exclude the time to 30 days from now under the Speedy Trial Act. Anything else?
AUSA: Our June 9 letter is obviated by the new deadline?
Judge Broderick: Yes.
On May 17, 2021, Judge Broderick said he wanted to hear more about Saipov's request for delay: "ORDER as to Sayfullo Habibullaevic Saipov: I am in receipt of Defendant Saipovs May 13, 2021 letter motion asserting that it is premature to schedule Rule 15 depositions and a tentative trial date given the current risk of traveling to Uzbekistan. (Doc. 379.) I would like to discuss these issues with the parties. Therefore, a telephone conference is scheduled in this matter for June 3, 2021."
On October 8, 2020 the US acknowledged late production of discovery but made other arguments: "Re: United States v. Sayfullo Habibullaevic Saipov, S1 17 Cr. 722 (VSB) Dear Judge Broderick: We write in response to the defendant’s September 24, 2020 letter concerning the Government’s recent production of additional recorded statements involving Saipov (the “Defense Letter”). In November 2018, the Government produced to the defense 683 telephone calls, 135 text messages, and three emails involving Saipov that the Federal Bureau of Investigation had collected in separate terrorism investigations pursuant to classified surveillance of other individuals. Unbeknownst to the Government, this production did not include 41 intercepted telephone calls involving Saipov (the “Additional Saipov Intercepts”) collected in the course of those investigations. Following an inquiry from the defense in April 2020, the Additional Saipov Intercepts were identified and subsequently produced on July 15 and 24, 2020, along with five additional calls.1 The Government should have identified and produced the Additional Saipov Intercepts earlier, and we do not seek to excuse their late production through this letter. The Government explains below how the Additional Saipov Intercepts were identified, as well as the additional diligence the Government has undertaken since then to ensure its compliance with Rule 16. The Government further describes additional discovery diligence conducted since April 2020 in the Classified Supplement.
1 These five additional calls (dated August 16, 2015, September 9, 2015, October 2, 2015, March 21, 2016, and June 13, 2016) were subject to the protective order entered by the Court on October 29, 2019 (Dkt. No. 191 at 2-3), and are addressed further in an ex parte classified supplement to this letter (the “Classified Supplement”). The Government discovered today that it produced these five calls on July 24, 2020 though the calls are subject to the protective order. The Classified Supplement addresses topics raised in the Government’s motion pursuant to Section 4 of the Classified Information Procedures Act (“CIPA”). Thus, the Government respectfully submits that the Court should review the Classified Supplement in camera and ex parte because it addresses matters subject to the protective order entered by the Court on October 29, 2019.
The Government’s late production of the Additional Saipov Intercepts was the result of inadvertent human and technical errors. The undersigned prosecutors have worked in good faith for years to comply with their discovery obligations, respond to discovery requests and questions from the defense, and provide documents and information well beyond what Rule 16 requires. Given that context, the defendant’s suggestions of intentional or outrageous misconduct are unfounded and thus no evidentiary hearing is required. If the defense believes that the Additional Saipov Intercepts provide a basis for reconsidering the discovery motion, reopening the suppression hearing, and/or seeking other relief, the defense should file an appropriate motion or motions setting forth the bases for those requests. See, e.g., United States v. Blumenberg, 506 F. App’x 53, 54 (2d Cir. 2012) (“[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” (citation and internal quotation marks omitted)); United States v. Tzakis, 736 F.2d 867, 872 (2d Cir. 1984) (denying motion to reopen suppression hearing because of defendant’s failure to develop “any significant, new factual matters that would have been developed at such a hearing”); United States v. Oliver, 626 F.2d 254, 260 (2d Cir. 1980) (same). The Government does not object to Saipov filing such submissions, but they should not be ex parte and the Government should have an opportunity to respond to them. The Government ultimately believes that any such motions would be without merit. Like the interceptions produced in November 2018, the Additional Saipov Intercepts captured innocuous and non-pertinent conversations about topics including Saipov’s work, family, friends, and travel."
On April 23, Judge Broderick said there will probably be no SDNY jury trials until the Fall.
Federal Defender Patton said he does not favor keeping the jury pool to which questionnaires were previously given. He said people's answers might have changed.
AUSA Houle said the government does not object to dismissing that pool.
Judge Broderick agreed, adding that their personal situation might have changed as will have the timing of the trial, "perhaps some time next year."
Ms. Thomas said, We'll leave a message that they no longer need to call, the usual discharge of the jury. With the thanks of the court, of course.
Judge Broderick looked forward: Once we start letting members of the public back into the courthouse, what actually needs to happen from each party's perspective, in terms of the openness of the court and of society, to move this forward? Travel from overseas, social distancing.... There with be communications from the Chief Judge, and from the governor about restrictions, or the Federal government.
Judge Broderick said, The next date in is June, tied to the day the Chief Judge excluded Speed Trial Act until. "We could extend that if needed," he concluded. Inner City Press will continue to cover this case.
Previously, on April 19 Saipov's Federal Defenders raised questions: "United States v. Saipov, (S1) 17 Cr. 722 (VSB) Dear Judge Broderick: We appreciate the Jury Clerk’s provision of well-organized data responsive to our demand for grand jury records (ECF No. 218, Attachment # 1, Declaration of Jeffrey Martin), which was endorsed by the Court (ECF No. 294). We write to follow up on a few incomplete responses: 1. The data supplied only included the odd page numbers for the Jury Plan. Please provide the entire Jury Plan. (If any other information that was meant to be supplied has the same problem with copying, please supply the missing information.) 2. The Form AO-12 for the Foley Division was supplied. Because the Foley Division and the White Plains Division overlap geographically, the Form AO-12 for the White Plains Division 2013 Jury Wheel is requested. 3. The email included in Jury Exhibit #1 is partially obscured by a sticky note. Please supply the entire email. 4. The response to the request for the voter registration source list is "Available directly from Board of Elections". The voter registration used to create the Jury Wheel used to summon grand jurors in this case is not the current voter list available from the Board of Elections but rather a historical list supplied to the Court. Please supply the list received by the Court to create the 2013 Master Wheels. 5. The data supplied included Jury Exhibit #4 (persons selected as potential grand jurors), electronic file Pool 101170310, and the 2013 Master Jury Wheel (Wheel 04 spreadsheet). There are some inconsistencies between these files; please explain the discrepancies. Some of the persons on Jury Exhibit #4 (persons selected as potential grand jurors) are not in Pool 101170310 and/or not in the 2013 Master Jury Wheel (Wheel 04 spreadsheet). What is the explanation for why these persons are on Jury Exhibit #4? 7. Some of the persons in Pool 101170310 are not in the 2013 Master Jury Wheel (Wheel 04 spreadsheet). What is the explanation for why these persons are listed in Pool 101170310? Needless to say, we understand if the Jury Clerk is unable to access the requested information until the courthouse fully re-opens." Inner City Press will continue to cover this case as closely as possible.
At a court appearance on November 18 before U.S. District Court for the Southern District of New York Judge Vernon S. Broderick, after his Federal Defender inquired into Saipov receiving dental care, Saipov told Judge Broderick he had not right to judge him.
As Inner City Press recounted moments later outside the courthouse on Pericope here - any use of phones in the courtroom was prohibited - Saipov asked Broderick, What about the thousands or millions of Muslims killed by American bombs?
Judge Broderick replied, I am just the referee, it is the jury that will judge you. And it emerged, that jury might be anonymous and/or semi-sequestered.
Much of the November 20 conference, delayed by problems with the sound system for the Uzbek interpreter, concerned how the jury will be selected. Some 3000 questionnaires will be mailed out, asking potential jurors about hardship but not disclosing what the case is about.
Judge Broderick said, with response rates to such summons being being 30%, perhaps it was better to spring more information on the prospect once they were in court.
Federal Defender alluded to an "incident" in which unspeficied inappropriate language was used; Judge Broderick responded but left the issue murky. Then Saipov asked to speak, and did. The case is US v. Saipov, 17-cr-722 (Broderick).
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