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By Matthew Russell Lee, Patreon Thread
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SDNY COURTHOUSE, Nov 29 – In the sex trafficking trial of US v. Carl Andrews that Inner City Press has been reporting on despite a partially sealed courtroom and US Attorney withholding of exhibits, the defense on March 14 asked for and got a stay and then end of the trial.

The reason? Coronavirus COVID-19.

  For that re-trial one of the US Attorney's Office's witnesses is blamed for putting the jury, court staff, and the Press at risk (Inner City Press witnessed and reported on her March 12 testimony, here), see below.

 Now on November 29 Andrews counsel has detailed problems with legal calls and access to discovery in the MCC: "We have a standing one-and-one-half-hour videoconference with Mr. Andrews that is to occur weekly on Wednesdays at 9:00 AM. These videoconferences are being scheduled by the Federal Defender's Office and come out of the weekly thirtyfive hours of videoconference time allotted to them to administer. The videoconference that was to take place on November 25, did not take place because it conflicted with the telephonic status conference with your Honor. That said, we had received an extra two-and-one-half-hour videoconference the day before that was scheduled by the MCC itself upon the government’s request. As for scheduling videoconferences outside of the Federal Defender's administrative capabilities, the government advised us that we should make arrangements directly with MCC Legal staff and copy the government. Accordingly, on Wednesday, November 25 and again on Friday, November 27, we emailed Nicole McFarland and the MCC's paralegal, Marc Peakes, to schedule a videoconference for the week of November 30. We copied the government regarding this request; however, as of this writing we have received no response from the MCC.

 In our November 24 letter to the Court, we also set forth the difficulties Mr. Andrews encountered while attempting to access the hard drive kept on his unit. We wrote the following: We understand that Mr. Andrews has not had access to the hard drive kept on his unit in about two weeks. He reports that he has consistently requested access and has been told by staff on his unit that they cannot accommodate his computer time because of the "lockdown." When he was given access to the computer, his time slot was 11:00 to noon, and, not infrequently, telephonic status conferences or attorney-client visits and videoconferences conflicted with his opportunity to review discovery kept on the hard drive. Mr. Andrews asked for an alternate accommodation so that, if he was unavailable for the 11:00 to noon slot, he would receive access at another time that same day. His request was denied. He also asked to change the schedule to a time when these prearranged conflicts were unlikely to arise. That request was also denied without explanation. Prior to our November 25 status conference, we asked Ms. McFarland to address these issues. We received an email in response as the status conference was under way. Ms. McFarland notified us that, because Mr. Andrews' unit (7 South) is currently quarantined, he cannot come out of his cell outside of "the allotted time." To be clear, “the allotted time” refers to time when quarantined inmates are all permitted to shower – and not to a time when they are permitted to access their discovery. Ms. McFarland also reported that Mr. Andrews' unit manager told her that, prior to the quarantine, Mr. Andrews did not indicate that his scheduled time slot for reviewing discovery (11:00 AM to noon every weekday) conflicted with court appearances, attorney visits or legal calls. We have not had an opportunity to discuss Ms. McFarland's account specifically with Mr. Andrews because we learned about it on November 25 and have had no contact with Mr. Andrews since. But we have no reason to doubt that Mr. Andrews has made his views about the scheduling conflict known for some time. In the unlikely event that this letter sparks a response from the MCC prior to our conference on Monday, November 30th we will alert the Court."

 In a proceeding on  November 18, it emerged that defendant Carl Andrews rejected the US Attorney's plea offer and will no longer stipulate and allow in the out of court statements that established venue in the first abortive trial, at least not for the truth of the matter asserted.

  It seems his case may be re-indicted in the Eastern District. Judge Engelmayer on November 18 said the U.S. Attorney's opposition to the motion to dismiss for lack of venue is due on November 23. He set a conference for co-defendants there, and directed that Andrews legal consultations not be counted against what appears to be his defense counsel's quota of overall time. We'll have more on this.
Where was the filing about COVID: "Re: United States v. Randall et al., No. 19 Cr. 131 (PAE) Dear Judge Engelmayer: At the outset of the pandemic, which was dominating headlines even then, the government's witness Chitra Raghavan flouted an order barring people from the courthouse if they were exhibiting certain symptoms, which included coughing. During her testimony, Dr. Raghavan's coughing fits were alarming. Perhaps sensing the unease of the trial participants, Dr. Raghavan offered a pretext – her allergy to dust and carpeting – was the reason for her coughing and she continued to testify – and cough. Emails that were later produced by the government revealed that Dr. Raghavan suspected that she had COVID-19 at the time of her testimony. In a letter motion filed under seal on September 25, 2020, the government asserts that this patently reckless and inexplicable conduct should be out of bounds on cross-examination. Proffer notes recently supplied by the government pursuant to the Jencks Act reflect that Dr. Raghavan blatantly violated the Southern District’s Standing Order prohibiting people with specifically enumerated symptoms, including coughing, from entering the courthouse. It is clear that Dr. Raghavan misled the Court. Dr. Raghavan’s noncompliance with the Court’s order put the lives of the trial participants and the jurors in jeopardy. More than a fair inference can be drawn that Dr. Raghavan misled your Honor through counsel for the government and ultimately, the jury, while under oath." Full letter on Patreon here.

 On October 28, two co-defendants to have their own trial four weeks after Andrews were set for a pre-trial conference. But while Dwayne Conley was there, Justin Rivera was absent. It was said he is in the MCC's Special Housing Unit or SHU. Finally 45 minutes later, he was on the line. Judge Engelmayer expressed his displeasure, and the docket says "defendant Rivera was not produced."

On November Judge Engelmayer held another proceeding, on Rivera's access to discovery. The Assistant US Attorney said Rivera can have access to the hard copy materials provided to his counsel at the SHU, and an hour daily in the law library, and in-person meeting with his counsel at 500 Pearl Street.

  A request was made for three hours a day, but Judge Engelmayer said to start with one hour a day and see how it works. The Government says it has made a plea offer to Andrews. We'll have more on this.

 On September 11, a pre-trial conference was held for the upcoming second Andrew trial. Andrews, speaking for himself, objected to the exclusion of time under the Speedy Trial Act. But it was continued. Inner City Press tweeted, below.

 On October 16, the US opposed and, it would seem, has torpedoed Andrews' request for a bench or non-jury trial: "Re: United States v. Carl Andrews, 19 Cr. 131 (PAE) Dear Judge Engelmayer: Defendant Carl Andrews is expected to proceed to trial in early 2021. On October 14, 2020, Andrews requested a non-jury trial. (Dkt. 525). Andrews has further informed the Government that he is unwilling to stipulate to the testimony of the witness whose medical condition prompted the trial adjournment in this case. Federal Rule of Criminal Procedure 23(a) states that a trial must be by jury unless the defendant waives the jury trial, the government consents, and the Court approves. After carefully considering Andrews’s request for a jury trial, the Government has decided not to consent to Andrews’s request. Accordingly, Andrews’s trial should proceed before a jury."

  For the purpose - and to put into the record the admonitions of the US Attorney's Office required by amendments to FRCP 5(f), Judge Engelmayer held a proceeding. Andrews' lawyer is asking for an associate counsel at $100 an hour, and for photocopies from Big Apple Copying to be delivered to the MCC.

A letter from EDNY AUSA Saritha Komitireddy to EDNY Juge Eric R. Komitee shows that office citing delays in US v. Donzinger between SDNY Judge Loretta Preska, and of delivering a laptop to a BOP facilities.

 Here is the CRCP5(f) order, the language of which was hammered out by an SDNY committee that Judge Engelmayer heads: "ORDER as to Carl Andrews. This Order is entered, pursuant to Federal Rule of Criminal Procedure 5(f), to confirm the Governments disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, and to summarize the possible consequences of violating those obligations. The Government must disclose to the defense all information "favorable to an accused" that is "material either to guilt or to punishment" and that is known to the Government. Id. at 87. This obligation applies regardless of whether the information would itself constitute admissible evidence. The Government shall make good-faith efforts to disclose such information to the defense as soon as reasonably possible after its existence becomes known to the Government, so as to enable the defense to make effective use of the information in the preparation of its case. The Government must also disclose information that can be used to impeach the trial testimony of a Government witness. Such information must be disclosed sufficiently in advance of trial in order for the defendant to make effective use of it at trial or at such other time as the Court may order. The foregoing obligations are continuing ones and apply to materials that become known to the Government in the future. Additionally, if information is otherwise subject to disclosure, it must be disclosed regardless of whether the Government credits it. In the event the Government believes that a disclosure under this Order would compromise witness safety, victim rights, national security, a sensitive law-enforcement technique, or any other substantial government interest, it may apply to the Court for a modification of its obligations, which may include in camera review or withholding or subjecting to a protective order all or part of the information otherwise subject to disclosure. For purposes of this Order, the Government includes federal, state, and local law-enforcement officers and other officials who have participated in the investigation and prosecution of the offense or offenses with which the defendant is charged. The Government has an obligation to seek from these sources all information subject to disclosure under this Order. If the Government fails to comply with this Order, the Court, in addition to ordering production of the information, may: (1) specify the terms and conditions of such production; (2) grant a continuance; (3) impose evidentiary sanctions; (4) impose sanctions on any responsible lawyer for the Government; (5) dismiss charges before trial or vacate a conviction after trial or a guilty plea; or enter any other order that is just under the circumstances. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 10/26/2020)(jbo) (Entered: 10/26/2020)."Inner City Press will stay on this case.

This US v. Andrews case, the 1st COVID mis-trial version of which Inner City Press covered including from separate courtroom 506 listening to but not seeing a "confidential" witness, is heating up.

 Meanwhile, the parallel case of two co-defendants stands to be delayed, as least as to one of them: "Re: United States v. Dwayne Conley  Dkt. No. 19-Cr-131 (PAE) Dear Judge Engelmayer: On behalf of Mr. Conley, I request that the trial be adjourned to January, 2021. The Government does not oppose an adjournment to the first quarter of 2021. We have conferred with counsel for Mr. Rivera, and have been informed that they are not in a position to consent to our request given Mr. Rivera's desire to exercise his right to a speedy trial."  Inner City Press will stay on the case

Inner City Press' opposition: "Re: Press Access to US v. Andrews, 19 Cr. 131, including actual same day access to transcripts and exhibits, and press access to the courtroom Dear Judge Engelmayer:    This concerns the request of the US Attorney's Office to "partially" close your courtroom to the press and public in the above-caption case. The request was dated March 6, but Inner City Press only became aware of the request this morning, and immediately opposes it in the same fashion - email to Chambers and deputy to be filed inthe docket and on ECF - as it did in January 2020 to your colleague Judge Paul A. Crotty on a near-similar request by the USAO. 

This timely opposition is filed on behalf ofInner City Press and in my personal capacity. The  access restrictions are unacceptable, and go beyond those requested even in the Central Intelligence Agency trial before Judge Crotty, US v. Schulte, 17 Cr. 548 (PAC).   In that case, the AUSO proposed allowing thepress into the courtroom during the closure, and provided for a continuous live video feed of the proceedings, with camera turned away for certain witnesses,allow for live tweeting of the proceeding as Inner City Press has done. The AUSO also provided exhibits, and in some cases transcripts, in an online file for the press.     Here, AUSA Wolf's letter does not propose any press access to the courtroom during the proposed "partial" closures.Live tweeting would not, apparently, be possible of any portion of the proceedings(see, e.g., your case US v. Jones." 18-cr-834, at #364, pg 23 (October 17,2019). In that case, Inner City Press' live-tweeting drew an "incident report" a copy of which I have yet to see.) This hinders reporting. Given that and the simultaneous US v. Nejad and US v. Schulte, see above, provisions must be made for live-tweeting of this proceeding.

   AUSA Wolf said the public would have the transcripts the night after proceedings - but how? For hundreds of dollars? That is not access. He does not mention access to exhibits, as Inner City Press advocated for and has largely obtained in US v. Schulte, see e.g. its filings in the docket, viewable free (not 10 cents a page) here, here and here.

  The U.S.Supreme Court has recognized that reporting by the news media allows members ofthe 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.We ask that this be placed in the ECF docket and that these issues be addressed by Your Honor before the trial begins." Watch this site.

The case is US v. Randall, et al., 19-cr-131  (Engelmayer).

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