Nikola
Founder Milton Got Trial Pushed to Sept 12
Now Wants Review of Notes on Boardman
By Matthew
Russell Lee, Patreon Video Podcast
BBC
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SDNY COURTHOUSE,
August 18 – 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.
On August 18,
Milton had a similar request
with regard to Richard
Boardman, and also submitted
"t two related documents for
in camera review. One is
an unredacted email; the other
is an email chain, which we
have already redacted to
remove what constitutes, in
our professional judgment,
mental impressions,
personal beliefs, trial
strategy and/or legal
conclusions of the lawyers
involved in the meeting. We
now ask the Court to
inspect these two documents
and to reach the same
conclusion that we urge
above regarding the Boardman
Memorandum." 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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