| In Bannon Case We Build the Wall and
Kobach Lose Appeal of Restraining Order, May
Seal
By Matthew
Russell Lee, Patreon
BBC
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UK - Honduras
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Source
SDNY COURTHOUSE,
May 5 –
The Southern District of New
York courthouse, which Inner
City Press has covered nearly
alone this summer amid the
COVID-19 pandemic, was jumping
on August 20. Video here.
In the afternoon, Steve Bannon
would appear in person before
a judge. After pleading not
guilty, he told the press as
he left the courthouse, "This
entire fiasco is to stop
people who want to build the
wall."
This came after
more than two hours of
chanting by three then six
people with flags, pro-Bannon:
"CCP violence, stop the
killing." Inner City Press
spoke with them, video here.
And see coverage
of Guo case here,
podcast here
On August
31, U.S. District Court for
the Southern District of New
York Judge Analisa Torres held
a proceeding, and Inner City
Press live tweeted it, below.
On
December 17, Judge Torres held
another proceeding, and Inner
City Press live tweeted it,
below.
On December 27-28
in the case, We Built The Wall
and Kris
Kobach have
appealed: "Notice is hereby
given that We Build the Wall,
Inc., and Kris Kobach,
nonparty movants in the
above-captioned case, hereby
appeal to the United States
Court of Appeals for the
Second Circuit from an Order
denying their Motion to Modify
a Post-Indictment Restraining
Order, entered in this action
on December 14, 2020."
Now on May 5,
Judge Torres has denied the
request without prejudice:
"ORDER - Defendant Brian
Kolfage moves for an order
modifying the post-indictment
restraining order issued on
August 24, 2020, which
prohibits the transfer of
certain funds involved in his
charged offenses (the
"Restraining Order"), ECF No.
64. Alternatively, he requests
a hearing to challenge the
Courts finding that there was
probable cause for the
issuance of the Restraining
Order, ECF No. 77. For the
reasons stated below,
Kolfage's motions are DENIED
without prejudice. By May 19,
2021, Kolfage may submit
evidence demonstrating that he
meets the threshold for a
Monsanto hearing, along with a
motion to seal the affidavit
from the public if desired.
(Signed by Judge Analisa
Torres on 5/5/21)."
More
specifically, "In his
declaration, Kolfage claims
that he cannot pay his lawyer
without We Build the Wall’s
insurance. Kolfage Decl. ¶ 5.
This “bare recitation” does
not meet the required
threshold. Bonventre, 720 F.3d
at 128. Kolfage has stated
that he is prepared to submit
the required financial
affidavit if required, Def.
Mem. at 7, and the Court shall
permit him to do so.
In addition, as
Kolfage is seeking to unfreeze
We Build the Wall’s funds to
pay for his defense, the Court
also requires evidence that We
Build the Wall needs the
restrained funds to pay the
$125,000 and that We Build the
Wall will, in fact, use the
funds to do so. See Emor, 794
F. Supp. 2d at 149–50
(requiring information
regarding a third-party
employer whose frozen assets
defendant asserted would pay
for his legal fees, because
“there is no reason to believe
that due process requires a
hearing whenever a third[
]party wishes to cover a
defendant’s legal expenses
using seized assets in lieu of
other, more readily available
assets”). B. Request for Ex
Parte Submission Kolfage
requests he be permitted to
submit the financial affidavit
ex parte, or, if the Court
declines to permit that, to
“preclude the government from
being able to use, directly or
derivatively, any statements
in the affidavit against” him.
Def. Reply at 6. Kolfage
contends that the Government
may attempt to use such
statements as proof of guilt,
and permitting the Government
to do so would put Kolfage in
the untenable position of
choosing between his Sixth
Amendment right to counsel,
and his Fifth Amendment right
to not self-incriminate. Id.
at 5–6. The Court is aware of
“no cases that provide
guidance on reconciling the
tension between the Fifth
Amendment and the Sixth
Amendment . . . where
Defendant would have to
produce Case 1:20-cr-00412-AT
Document 111 Filed 05/05/21
Page 10 of 13 11 financial
data to prevail in his quest
for the release of seized
assets to hire counsel of his
choice,” but the issue has
arisen in the analogous
circumstance of the affidavits
used to establish a
defendant’s eligibility for a
lawyer appointed under the
CJA. U.S. v. Bokhari, 185 F.
Supp. 3d 254, 266 (D. Mass.
2016). Second Circuit
defendants are not
automatically entitled to make
an ex parte submission when
demonstrating that CJA
eligibility might raise Fifth
Amendment concerns. United
States v. Harris, 707 F.2d
653, 662–63 (2d Cir. 1983).
Courts generally “either
permit[] the defendant to
present financial information
through ex parte, in camera
proceedings with the
information subsequently
placed under seal, or
conduct[] an adversarial
proceeding but set[] specific
limits on the subsequent use
of any information presented
by the defendant during the
inquiry.” United States v.
Hilsen, No. 03 Cr. 919, 2004
WL 2284388, at *4 (S.D.N.Y.
Oct. 12, 2004). The Second
Circuit has “expressly
endorsed the latter option,”
and set forth the “guiding
principles” that “‘facts are
best determined in adversary
proceedings,’ the importance
of which process outweighs any
‘speculative possibility of
inadequate protection of
defendant’s [F]ifth
[A]mendment rights,’
particularly where those
rights are otherwise protected
by limitations imposed on the
government’s use of
information supplied by a
defendant in aid of his or her
application for appointed
counsel.” Id. at *4, 8
(quoting Harris, 707 F.2d at
662–63). Accordingly, the
Hilsen court concluded that,
under Harris, unless the
conflict between the Fifth and
Sixth Amendments was
“immediate and real” and there
was more than the “the bare
assertion that disclosure of
this information would present
a substantial hazard of
selfincrimination,” a court
should not permit an ex parte
submission. Id. at *9–10.
Echoing Harris,
courts in this circuit have
almost uniformly denied
requests to file a CJA
affidavit ex parte, including
where the defendants were
charged with fraud. See, e.g.,
United States v. Coniam,
574 F. Supp. 615, 617–18 (D.
Conn. 1983); United States v.
Hennessey, 575 F. Supp. 119,
120 (N.D.N.Y. 1983), aff’d,
751 F.2d 372 (2d Cir. 1984).
In the one instance where a
court granted the party an ex
parte, in camera hearing, the
defendant was requesting a CJA
attorney for sentencing, where
the defendant’s underlying
conviction was for perjury on
the court based on the
defendant’s submission of
false statements in an
affidavit supporting his
request for CJA counsel in a
separate case. United States
v. Jenkins, 130 F. Supp. 3d
700, 704–05 (N.D.N.Y. 2015),
aff’d, 727 F. App’x 732 (2d
Cir. 2018).3
Here, Kolfage
claims that his Fifth
Amendment concerns arise from
the Government’s
“hyper-critical” scrutiny of
his finances, in which it
“appears to consider every
financial decision [Kolfage]
has made [as] evidence of
guilt,” and so he is “hesitant
to provide the [G]overnment
with additional information
that, although innocent, the
[G]overnment will most likely
twist and contort to support
the charges filed against
him.” Def. Reply at 6. These
concerns are speculative. Cf.
Coniam, 574 F. Supp. at 618
(denying an ex parte
submission where “[d]efendant
has merely suggested that
unsealing ‘may provide the
government with access to
information relevant to the
prosecution which may be
developed into inculpatory
evidence beyond the scope of
use immunity protection.’”);
Hilsen, 2004 WL 2284388, at *1
(denying an ex parte
submission despite [the
defendant’s] assertion that
“disclosure . . . would
present a substantial hazard
of self-incrimination in
violation of the Fifth
Amendment . . . because the
facts to be set forth in the
CJA 23 are directly related,
if not identical, to the facts
the government must establish
at trial concerning the sole
count of the indictment
against [the defendant]”). 3
Courts have occasionally also
permitted ex parte submissions
for non-Fifth Amendment
reasons. See United States v.
Parker, No. 00 Cr. 53A, 2004
WL 2095684, at *4 (W.D.N.Y.
Sept. 14, 2004), aff’d, 439
F.3d 81 (2d Cir. 2006)
(attorney-client privilege);
United States v. Venator, 568
F. Supp. 832, 836–37 (N.D.N.Y.
1983) (granting a temporary ex
parte submission due to “the
interests in a speedy and just
disposition of this criminal
matter,” where the case was
scheduled to go to trial in
two days).
Accordingly,
Kolfage’s request to submit an
ex parte affidavit in support
of his application for a
Monsanto hearing is DENIED.
However, the Second Circuit
was clear that in disfavoring
ex parte submissions to
resolve the Fifth and Sixth
Amendment tensions, it was not
leaving the defendant in an
untenable spot. See Harris,
707 F.2d at 662 (holding that
“the rule that a defendant’s
testimony at a pretrial
hearing will not be admissible
at trial on the issue of guilt
unless he fails to object” is
applicable to CJA affidavits).
Kolfage’s affidavit shall be
afforded the same scope of use
immunity given with respect to
CJA affidavits, meaning the
protections and limitations of
such immunity apply. See,
e.g., United States v. Kahan,
415 U.S. 239, 242–43 (1974);
U.S. v. Branker, 418 F.2d 378,
381 (2d Cir. 1969); Hilsen,
2004 WL 2284388, at *11.
Therefore, the Government
shall not be permitted to use
in its direct case information
contained in Kolfage’s
affidavit that is not
otherwise available.
CONCLUSION For the reasons
stated above, Kolfage’s
motions are DENIED without
prejudice. By May 19, 2021,
Kolfage may submit evidence
demonstrating that he meets
the threshold for a Monsanto
hearing, along with a motion
to seal the affidavit from the
public if desired." Watch this
site.
From Inner City Press'
December 17 thread:
Judge Torres: I
understand that for Mr.
Bannon, Mr. Burck [of Quinn
Emanuel] is withdrawing, and
Mr. Costello is making his
appearance?
Burck: Yes. Judge
Torres: You are relieved. Will
the [remaining] attorneys make
their appearances?
AUSAs Moe, Roos
and Sobelman
Judge Torres now
reading script of the new Due
Process Protection Act signed
by President Trump in October,
amending Federal Rule of
Criminal Procedure 5(f).
AUSA: The
discovery is very extensive.
We loaded the drives, at least
the ones the defendants
provided
Judge Torres:
When will you be finished?
AUSA: It takes a
while. A device [phone] has to
be imaged, then a privilege
team, then to prosecutors. I
could give you an update in a
few weeks or a month.
Judge Torres:
Done by end of January? AUSA:
Not with every device.
Judge Torres: How
about February 22, 1 pm, as a
control date, to know if the
defense will be making motion?
AUSA: Fine with
the government.
Defense:
Can't predict, not having seen
anything. [Apparently Costello
for Bannon]
Costello for
Bannon: Any Brady material?
AUSA Sobelman: we
can do this offline, rather
than in this public forum. Mr
Costello never raised this to
us, when we spoke. Judge
Torres: OK, discussion
offline. I'd like to wish you
happy holidays. Adjourned.
Then, after the
judge and others hang up,
still on the line, among those
with speaking roles: "Federal
Judge appointed by Obama...
This is pure political
persecution of Trump." Watch
this site.
On November
5, co-defendant Tim Shea asked
for a transfer to Colorado:
"PLEASE TAKE NOTICE, that upon
the accompanying papers, any
exhibits attached thereto, and
upon proceedings heretofore
had, Timothy Shea, by his
attorneys, John Meringolo
Esq., will move this Court,
before the Honorable Analisa
Torres, in the United States
District Court for the
Southern District of New York,
for an Order granting Mr.
Shea’s motion to transfer
venue of this proceeding to
the United States District
Court of Colorado and any
other relief the Court deems
just and proper. Dated:
November 5, 2020 New York,
NY."
Judge Torres has
directed the US to reply:
"ORDER as to Timothy Shea: On
November 5, 2020, Defendant
Shea filed a motion to
transfer. ECF No. 44. By
November 12, 2020, the
Government shall reply to this
motion. The Government shall
be prepared to state its
position on the motion at the
status conference scheduled
for November 9, 2020.
(Responses due by 11/12/2020)
(Signed by Judge Analisa
Torres on 11/5/2020) (ap)."
Watch this site.
Now in
September, a protective order
in the case with this: "The
parties, the parties’ counsel,
and Designated Persons shall
not disclose Protected
Materials to members of the
media, nor shall the parties,
the parties’ counsel, and
Designated Persons post any
Protected Materials on any
Internet or network site (such
as Facebook, Twitter,
Instagram, and other social
networking and media sites and
applications) to which persons
other than the parties, the
parties’ counsel, and
Designated Persons have
access." The US Attorney's
Office is asking for his more
and more - even in a case
about a man falsely calling
9-1-1. It should not stand.
William Burck,
Allison McGuire and Daniel
Koffman for Bannon and
finally, after unmuting,
Maringolo for Tim Shea.
Judge Analisa
Torres: Good afternoon. [Asks
Kolfage's lawyer to come out
from the darkness - has light
behind him]
Bannon has
already been arraigned, but
other three have not. Judge
Torres asks, "Have you been
provided with the indictment?"
Kolfage: Yes. Badalato: Yes.
Shea: Yes. None of them want
indictment read out loud in
court. Kolfage: Not guilty.
Badalato: Not guilty.
AUSA Moe: For Mr.
Kolfage we propose $500,000
bond... & prohibition
against raise funds for We
Built The Wall. No guns.
Badalato & Shea: $250,000
bond each, no contact with No
Build the Wall-ers except for
wife. Judge Torres warns
condition must be complied
with
Judge
Torres: We need to pick a
trial date. Here in SDNY we
have only a few courtrooms
prepared for COVID pandemic.
May 24, 2021 is the day I'd
like to set. [Pause]. I
haven't heard objections, so
that's the date. Please tell
me about discovery.
AUSA Moe:
We intend to seek a protective
order before providing
discovery, given the sensitive
nature of the material. We
will then provide search
warrants and returns, a
January search warrant for
emails, all within 3 weeks
after the protective order.
Judge Torres: I'm
going to expect protective
order by Sept 8, and first
wave of discovery by Sept 29.
AUSA Moe: In July
and August we requested more
emails, and devices. We
haven't seen it all yet. We'll
then provide it, on a rolling
basis.
Judge
Torres: All by Oct 30? AUSA
Moe: We don't know which
devises we'll be able get
into. We can do status
letters. Judge Torres: So
status conference on Oct 26 at
1 pm. And yes, I would like to
hear about discovery. Now I'll
turn to Mr. Kolfage's social
media.
Judge Torres: Let
me give you an example of
statements lawyers in cases
here can't make: statements
about past criminal record, or
refusal or failure of the
accused to make any
statement. If public
statements by the defendants,
Local Rule 23.1 allows me to
rule
Judge Torres: If
any party in this case makes
statements that could
prejudice a jury, I will issue
such a statement. Do you
understand, Mr. Kolfage? Yes.
Mr Bannon: Yes... Kolfage's
lawyer: By definition 23.1
does not apply to defendants
unless you hold a hearing
Kolfage's lawyer
cites US v. Gotti, 2004 case.
"The government issued a press
release, approved by the US
Attorney herself, she says he
'used the funds for his lavish
lifestyle.' That has nothing
to do with the case. It
violates Number 7. He's called
a fraudster
Kolfage's
lawyer: The US violated the
rule, they are being repeated
by the press. It reminds me of
the bully who picks on the
weakest then when hit back,
bully runs to the teacher.
Rule 23 doesn't apply to
defendants. Under 1(h) you'd
have to hold a hearing.
Kolfage's lawyer:
I have not help my client
craft any statements. But we
can't have the US calling my
client a fraudster, and when
he replies, they come and
complain. Judge Torres: I'll
hear from the US. AUSA Moe:
We're not asking for an order
at this time.
AUSA Moe:
Our press release was standard
and commonplace in this
District. We did not hold a
press conference. What
troubles us is defendant's
statement to witnesses &
donors telling them the
government will target them.
AUSA Moe:
We have raised to Mr. Bannon's
lawyer there may be a conflict
of interest with his lawyer at
Quinn Emanuel, which
previously represented We
Build The Wall. We may ask for
a Curcio hearing.
Bannon's lawyer:
2 lawyers at our firm did some
work for We Build the Wall,
six & eight hours, by
people not on the trial team.
We would not object to a
Curcio hearing. We don't think
it's a significant issue.
Judge Torres:
Time is excluded under Speedy
Trial Act. This bring our
conference to a close. I wish
you all good health.
Adjourned.
The U.S.
Attorney's Office
announced "the unsealing of an
indictment charging BRIAN
KOLFAGE, STEPHEN BANNON,
ANDREW BADOLATO, and TIMOTHY
SHEA for their roles in
defrauding hundreds of
thousands of donors in
connection with an online
crowdfunding campaign known as
“We Build the Wall” that
raised more than $25
million. The defendants
were arrested this
morning. KOLFAGE will be
presented today before U.S.
Magistrate Judge Hope T.
Cannon in the Northern
District of Florida.
BANNON will be presented today
in the Southern District of
New York. BADOLATO will
be presented today before U.S.
Magistrate Judge Thomas Wilson
in the Middle District of
Florida. SHEA will be
presented today before U.S.
Magistrate Judge Kristen L.
Mix in the District of
Colorado. The case is
assigned to U.S. District
Judge Analisa Torres in the
Southern District of New
York."
At 4 pm
Bannon in a mask had a
presentment and arraignment in
before on-duty SDNY Magistrate
Judge Stewart D. Aaron. Inner
City Press live tweeted it:
Appearances:
Bannon is represented by Quinn
Emanuel. Mag Judge Aaron is in
black robe. AUSAs Roos and Moe
"for the US."
Judge Aaron: When
was defendant arrested?
AUSA: On a yacht
off the coast of Connecticut
this morning.
Judge: We may
have a bail hearing until a
package has been agreed
to. [Without irony:] If you
are not a citizen you have of
the right to notification of
the consulate
Judge: Is your
client prepared to enter a
plea? Defense lawyer: Not
guilty.
Judge:
Bail, detention or release?
AUSA Roos: We
have an agreement on release.
I'll read the conditions. A
bond in the amount of $5
million secured by $1.75
million in cash or real
property ...two
financial responsible
co-signers. Travel restricted
to SDNY and EDNY; DC, Maryland
and the EDVA, and CT for work.
No international travel. No
private planes or yachts
without permission. No contact
with We Built The Wall except
with counsel.
AUSA: No raising
money for We Built The Wall or
moving its money. Release
today with whatever time to
comply.
Judge
Aaron: I usually set a week.
Defense?
William Burck for
Mr Bannon: We would ask for 2
week because COVID situation
is unclear.
Judge: Seems
reasonable. US objection?
AUSA: No.
Judge Aaron: I've
reviewed pre-trial services
report and find these
conditions reasonably assure
his return for future court
appearances. I approve. Has
Judge Torres set any
conference date?
AUSA: Aug 31, 1
pm
AUSA: We have put
a notice on our website for
victims. And we believe the
defense may have a conflict of
interest.
Judge Aaron: You
do not need to give me the
specifics at this point. We
are adjourned.
The overall case
is US v. Kolfage et al.,
20-cr-412 (Torres).
***
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