| In Sex Trafficking Case SDNY
Belatedly Gave Discovery Now Inauguration Lock
Down Cited
By Matthew
Russell Lee, Patreon Thread
BBC
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SDNY COURTHOUSE,
Jan 18 – 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.
Back on
November 29 Andrews
counsel detailed
problems with legal calls and
access to discovery in the
MCC.
On November 30
Judge Engelmayer held another
proceeding, and Inner City
Press again covered it. Judge
Engelmayer acknowledged that
Andrews' case will probably be
leaving the SDNY, and ordered
that Defendant Justin Rivera,
who was again produced late,
should get three hours a day
with an "air-gapped" lap top.
There is also co-defendant
Dwayne Conley.
Now on
January 18, MLK Day, Conley's
lawyer has asked that he be
released on bond, citing that
"the MCC has imposed another
lockdown, which went into
effect at 12:00 am of January
16th and which will remain in
effect at least until the
January 20th Presidential
Inauguration... Given the
urgency of the current
situation, I urge the court to
consider this matter
promptly." Watch this site.
On December 7,
another proceeding was held.
While the laptop is to be
giving on December 8, now the
SDNY's Standing Order of
December 1 suspending most in
person proceeding has resulted
in Rivera not being allowed to
come to the cell block on
Fridays and meet with his
lawyers.
And as to Carl
Andrews, now the docket says
Nolle Prosequi. See you in the
Eastern District?
In the Southern District,
yet more discovery irregularities, belatedly
disclosed on New Years Eve: "Re: United States
v. Justin Rivera and Dwayne Conley, 19 Cr. 131
(PAE) Dear Judge Engelmayer: We write to
inform the Court and the defendants that the
U.S. Attorney’s Office for the Southern
District of New York (“USAO”) learned for the
first time two days ago, December 29, 2020,
that the Federal Bureau of Investigation
(“FBI”) is in possession of certain phone
calls and emails (the “BOP Materials”) made,
sent, or received by (i) defendants Justin
Rivera and Dwayne Conley while detained at the
New York Metropolitan Correctional Center
(“MCC”); and (ii) other defendants charged in
this case while in custody at the MCC or
Metropolitan Detention Center (“MDC”),
including three defendants (Lorenzo Randall,
Ricarda Diamond, and Brian Smith,
respectively) whose past statements (e.g.,
statements in text messages made
contemporaneously with the charged conduct)
may be introduced at trial for the truth of
the matter asserted. While the Government
previously produced other prison calls and
emails to the defendants, the majority of the
BOP Materials have not previously been
produced to the defendants.1 The USAO
understands that the BOP Materials were made,
sent, or received between in or about February
2019 and December 2020, 2 and that they
include: 1 As described below, the USAO has
produced certain prison emails to the
defendants, which may overlap with the BOP
Materials in the possession of the FBI. The
USAO has not yet determined to what extent its
previous production overlaps with the BOP
Materials first identified this week. 2 For
some individuals, the date range of calls and
emails included in the BOP Materials is
shorter.
For Mr. Rivera, approximately 266 recorded
phone calls and 6,760 pages of emails;3 • For
Mr. Conley, approximately 660 recorded phone
calls and 7,679 pages of emails;4 • For Mr.
Randall, approximately 600 recorded phone
calls and 19,436 pages of emails; • For Ms.
Diamond, approximately 27 recorded phone calls
and no pages of emails; and • For Mr. Smith,
approximately 177 recorded phone calls and
4,382 pages of emails. As the USAO stated at
prior Court conferences, the USAO was aware in
June 2019 that the FBI obtained and had within
its possession phone calls and copies of
emails made, sent, or received by certain
defendants through in or about June 2019 (the
“Prior BOP Materials”). The USAO previously
produced prison calls and emails, including
the Prior BOP Materials, to the defendants in
individual discovery. Based on communications
with the FBI, the USAO believed that the FBI
thereafter ceased to obtain prison calls or
emails absent the USAO specifically requesting
such materials. 5 This understanding was,
however, apparently incorrect. On December 29,
2020, the USAO learned that the FBI had, in
fact, continued to collect certain prison
calls and emails and was thus in possession of
the BOP Materials. The Government is in the
process of investigating how this significant
misunderstanding between the USAO and the FBI
concerning the FBI’s possession of the BOP
Materials came to be. 3 The USAO previously
obtained and produced to Mr. Rivera’s counsel
emails that were sent or received by Mr.
Rivera from the MCC between May 4, 2019 and
October 18, 2019, and which totaled
approximately 2,317 pages of emails. 4 The
USAO previously obtained and produced to Mr.
Conley’s counsel emails that were sent or
received by Mr. Conley from the MCC between
June 20, 2019 and September 3, 2019, as well
as between September 17, 2019 and September
23, 2019, all of which totaled approximately
5,537 pages. The USAO has also recently
produced to defense counsel for both
defendants as part of global discovery a small
subset of the emails produced in individual
discovery to Mr. Conley’s counsel that Mr.
Conley sent and received between September 17,
2019, and September 19, 2019. Those particular
emails relate to allegations of witness
tampering against Mr. Conley, as charged in
indictment number S5 19 Cr. 131 (PAE). 5 In
September 2019, at the USAO’s request, the FBI
obtained certain emails from BOP relating to
Conley’s witness tampering. Those emails were
previously produced to the defendants.
In the last 48 hours, the Government has
identified and begun collecting from the FBI
the BOP Materials. Pursuant to the
Government’s obligations under Rule 16(a) of
the Federal Rules of Criminal Procedure, the
Government will produce forthwith: (i) to
counsel for Mr. Rivera, those BOP Materials
made, sent, or received by Mr. Rivera; and
(ii) to counsel for Mr. Conley, those BOP
Materials made, sent, or received by Mr.
Conley. On a parallel track, the Government
will expeditiously review all BOP Materials
and disclose on a rolling basis to defense
counsel any relevant information covered by
Rule 16(a), Brady v. Maryland, 373 U.S. 83
(1963), and its progeny, and Giglio v. United
States, 405 U.S. 150, 154 (1972), and its
progeny, as such information is identified.
The USAO does not intend to use, or otherwise
rely on, any calls or emails not previously
produced in discovery."
On January 4,
Judge Engelmayer held a telephone
conference about the new and belated files, and
Inner City Press covered it. Because the
US Attorney's Office maintained that
the trial should still go
forward on February 16, Judge Engelmayer said 3500 material would
be due - and, on January
15, a letter reporting (Nejad-style)
on its
investigation as
to how the discovery lapse came
about." Watch
this site.
The case
is now US v. Rivera and Conley, 19-cr-131
(Engelmayer).
***
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