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SDNY COURTHOUSE, Oct 6 – When Larry Ray was arraigned on charges of sexual exploitation, prostitution, forced labor and money laundering on February 12, he was wearing prison blues and still had a Federal Defender, but no financial affidavit to have FD appointed. Twitter theadette; More on Patreon here. 

 On May 29 SDNY Judge Lewis J. Liman held a telephone conference, which Inner City Press live tweeted (below) and at which it was said, no legal visits in the MCC until June 30 at earliest.

   On September 4 the US Attorney's Office said in person legal visits in the MCC would re-start on September 21. This came in a proceeding that Inner City Press live tweeted, with notes on the (lack of) press and public access, the troubling creation of a "no-dissemination" category on which the press and public is not heard. See below.

Now on October 5, the US Attorney's office asked to quash Ray's Federal Defenders' subpoenas for victims' medical records, including therapy records, claiming "a potential violation of FRCP 17 and FRE 501."

 Federal Defenders disagreed, writing to Judge Liman that he has approved these subpoenas.

On October 6 the US Attorney's Office was more specific, blaming Federal Defenders for "plac[ing] the cart before the house." One may expect Judge Liman to schedule a conference. But what about the still undocketed unsealing request?

  On September 11 the US Attorney's Office argued again that discovery is private, not for public review or transparency: "the defense has not proffered any basis to disregard the presumption that “discovery is a private process between the parties to an action,” and is “not presumptively accessible” to others. Smith, 985 F. Supp. 2d at 519." Inner City Press will continue to report on this case, and not just what the US Attorney's Office, which held a press conference announcing the indictment, wants the public to know about it.

 On September 14, Judge Liman ruled, including "Neither the Government proposal nor the defense proposal sufficiently captures the Court’s intention. The Government proposal would limit the protection of the protective order to information that could subject a person to intimidation or obstruction or risk of harm without protecting from broad disclosure information that substantially affects the privacy of an individual. It also provides no criteria for the Court to determine whether Disclosure Material is Sensitive or Confidential. The defense proposal addresses the flaws of the Government proposal but has two flaws of its own: the definition of Confidential Disclosure Material accords protection without the need for the Government to show a threat of intimidation or obstruction or risk of harm, but it limits the definition to information “that substantially affects witnesses’ privacy”. It does not address information that substantially affects the privacy of an individual who may not be a witness. The definition of Sensitive Disclosure Material would leave it entirely to the Government to determine whether disclosure would create a risk of intimidation or obstruction or harm without any requirement that the Government’s belief be well founded. It thus could defeat the objective of subjecting the designations to challenge and judicial review. In other respects the definition of Sensitive Disclosure Material provided by both sides is too narrow. Accordingly, the Court will adopt the defense proposal with the following edits: (1) the definition of “Sensitive Disclosure Material” should be amended to reach “information that affects the privacy of individuals, and identifies, or could lead to the identification of, witnesses who the Government has a well-founded belief may be subject to intimidation or obstruction, or whose lives, persons, and property, as well as the lives, persons and property of loved ones, the Government has a well-founded belief will be subject to risk of harm absent the protective considerations set forth herein.” and (3) the language “contains information that exposes personal information that substantially affects witnesses’ privacy” should be replaced with the language “contains information that exposes personal information that substantially affects the privacy of an individual.” 1 The Government proposal is also explicit in stating that the Government has the burden of establishing good cause for its designation of disclosure material as sensitive, but it is implicit always that the party who designates disclosure or discovery material under a protective order has the burden of establishing that the material was properly designated if the designation is challenged. Dkt. No. 55-2 ¶ 8.

The differences between paragraph 8 of the Government proposal and paragraph 9 of the defense proposal are minor: the Court always has the power to set a deadline for a response. The Court finds it easier to have a default date of seven days for a Government response absent a Court order for both types of challenges but will accord the Government more than seven days for a response upon application by the Government. 3. Finally, paragraph 6 of the Government’s proposed protective order should be revised to replace the language “Disclosure material” at the beginning of the first sentence with “Sensitive or confidential disclosure material.” The Government is ordered to submit a proposed amended protective order consistent with this Order by no later than September 18, 2020."

The September 4 thread:

Judge Liman says due to COVID pandemic and difficulties of Federal Defenders meeting with Ray, he's prepared to postpone trial past January 19. Also today: A request to release Ray on bail, to help prepare his defense.

 Judge Liman: The defense has raised serious concerns about Mr. Ray having access to discovery. For that reason, I'm going to defer ruling on release request until I hear and perhaps rule on issues of early disclosure of Brady and witness list and the like.

 Federal Defender Lenox: Our request as to the sensitive materials, we're not asking the court to rule piece by piece. There's only a small percentage in dispute. We are proposing a mechanism to rule on those so Mr Ray can see it if he stays in custody

FD: We agree that nude videos are sensitive. But we would ask the court to review handwritten confessions. These things are exculpatory.

 [Note: FD wants to use sealing of evidence as way to get Ray out of jail. Press has asked to UNseal the evidence - which would also take this "Free Larry Ray" argument off the table.]

 Judge Liman: US wants to limit release of this evidence onto the Internet. Inner City Press @innercitypress · 1h [Note: The SDNY prosecutors are doing this all the time now - in a lower profile threats case, they wanted to not see the evidence "on Twitter," Inner City Press reported on that, see this. Here, will Judge Liman be addressing Press access issues?

Here, as in many cases including US v. Avenatti before SDNY Judge Furman, Federal Defenders is agreeing to or even advocating for secrecy from press & public. That's why there needs to be press and public intervention in these case. Judge Liman: a 3d category Inner City Press

 FD: The defense will consider this third category, material that could be shown to Mr Ray but not to others. [By this logic, will they be moving for a secret trial? Material is being unsealed by Judge Preska in Giuffre v. Maxwell. Less access in criminal case??  Judge Liman: The parties seem to have a very different view of these confessions. FD Lenox: They are exemplars of the victims admitting to poisoning Mr. Ray and damaging his property. We think these are exculpatory Brady material.

 AUSA Sassoon: We heard this morning that in person legal visits at the MCC will resume on September 21. So, the requests of the defense should be denied.

AUSA Sassoon: We are prepared to change the status of the confessions as long as they are not disseminated. 

Judge Liman: We don't need to disclose what is in the highly sensitive, in a way that would put the defense in an awkward position. Inner City Press @innercitypress · 45m AUSA Sassoon: They wanted to de-designate his phone, and there's nudity on that... Mr Ray should not see in his cell videos of verbal abuse that leads to mental breakdown Judge Liman: You could drive a truck through that

 AUSA Sassoon: Mr Ray does not have a right to see these things in his cell, from which he takes pleasure. Judge Liman: The issues is not yet ripe. But it may become so and require my resolution.

FD Lenox: They have transcribed conversation between an alleged victim and a bank.  Judge Liman: The defense can move the court if they believe the government had mis-designated materials. The US will have 7 days to respond, or more if a lot of material is dumped

 [By the way, how can Ray review videos of confessions in the privacy of his cell? Does he have a laptop in there?] Judge Liman: The parties should meet and confer and come up with the third category [of info Ray can see solo, but no dissemination. Hmm....]

 FD Lenox: We need to be able to discuss with Mr. Ray the search warrants and the results, for a possible Franks hearing. [Inner City Press School of Law note: https://ncjrs.gov/App/Publications/abstract.aspx?ID=82157

 Judge Liman: My notes say there are 43 devices. Are you going to offer evidence from all of them? AUSA Sassoon: The government has moved in stages. We've narrowed it to 40, extracted. Some we produced nothing probative reports. We will narrow it more.

Judge Liman: The government's obligation is satisfied when they disclose information sufficient for the defendant to make motions. And I'm giving you more time.

Judge Liman: How much more time do you need for motions? FD: Until Oct 29.  AUSA Sassoon: And we'd ask for a month to respond. FD Lenox: We'd like 3 weeks to reply AUSA Sassoon: Our month is really three weeks because of Thanksgiving. Judge Liman: Hearing Dec 18

 Judge Liman: To be sure I have a jury, I need a firm date. I could set it for March, or April.... FD: Latter is better. AUSA: We suggest May. Judge Liman: How about May 10 as a trial date? OK, and time excluded under 18 USC 3161(h)(1)(a).

 FD: Even if MCC opens for visits Sept 21, based on what's happening in MDC, they will be short visits. [Turns out NXIVM visit happened day before Ghislaine Maxwell's there].  And EDNY courthouse is shut down [also said in Judge Pauley case today]

 Judge Liman: That is helpful. I'll set 2 other deadlines. On protective order, I want letters from the parties a week from today. [The no-dissemination / exclude press and public regime]. And status letter in 3 weeks, from each side, on de-designation & MCC

FD: He's getting hard drive and CDs. Urge US to print material out. During lock-down, he has no access to a computer.

Judge Liman: I'm not going to be prescriptive. But Ms. Sassoon, I've seen cases where the US prepares books of documents and highlighted them.  AUSA: It will be in our Sept 25 letter.

Judge Liman: Stay safe. We're adjourned.

Voice (Ray?) Hello? Hello? Click.

 On Aug 27, Judge Liman ordered: "ORDER as to Lawrence Ray: The Government has asked to submit certain "sensitive exhibits" under seal to the Court for its review prior to the upcoming conference. The Government is directed to inform the Court, on notice to the Defendant, of the nature of the exhibits the Government is proposing to submit including whether such exhibits have been provided to the defense and of the justification for submitting such materials under seal given the presumption of public access to judicial proceedings. The Government shall file its letter by 5:00 p.m. on August 28, 2020. If the defense wishes to submit exhibits to the Court, it may file a similar letter on the same timing. (Signed by Judge Lewis J. Liman on 8/27/2020)."

  But now on August 31, the US Attorney's Office has filed, to the judge (hence, a judicial document) but entirely sealed, "two videos used as exhibits in the Government’s March 2020 bail argument: (1) IMG_2274 from [Female-1]’s iCloud; (2) IMG_0389 from [Female-2]’s iCloud1 B. From the 3/5/20 production: (1) All of the Sensitive soundcloud and youtube videos;2 (2) Ray 2006/2007 emails/documents (documents provided to law enforcement by Ray); (3) Ray Lawrence [DOI court and other records]3 C. From the 4/21/20 production: (1) 1B47 - Larry Ray Phone; (2) 1B48 - Larry Ray Phone." See below.

  Now on September 2, with the application to unseal yet to be addressed, the US Attorney's Office has filed a notice of motion to seize an "conduct an interlocutory sale" of all of Ray's 8000 domain names on GoDaddy.

   The US Attorney's Office filed its letter on August 27; it got endorsed while noting the possibility of an application against sealing. Now on August 28 Inner City Press has filed just that, and receipt has been confirmed:

"Dear Judge Liman:  On behalf of Inner City Press and in my personal journalistic capacity I am submitting this application to oppose the sealing and/or seeking the unsealing of materials in this case, specifically all non-exempt portions of materials that the Government seeks to submit to the Court on or before August 31, 2020.  

 As noted in your August 27 Order (Docket No. 41), there is a presumption of public access to judicial proceedings. The Supreme Court has recognized that reporting by the news media allows members of the 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 reporting on court proceedings, members of the press "function[] as surrogates for the public." Id. at 573.

Here, the sealing(s) and withholdings in their entirety go beyond those requested even in the CIA trial before Judge Crotty, US v. Schulte, 17 Cr. 548.      In that case, Inner City Press vindicated the public's right to know, in the docket, see here and here.    Inner City Press recently got even more sensitive filings unsealed in a North Korea sanctions case before Judge Castel, US v. Griffith, 20-cr-15 (PKC), Docket No. 33 (LETTER by EMAIL as to Virgil Griffith addressed to Judge P. Kevin Castel from Matthew Russell Lee, Inner City Press, dated 5/18/2020, re: Press Access to documents in US v. Griffith, 20-cr-15), 40 (order to unseal) and 41 unsealed filings). See also Inner City Press' May 9, 2020, filing to this Court for openness in US v. Randall, 19-cr-131,  No. 343.   

    Here, the Government seeks to submit material to convince the Court of its position. The AUSA writes that "in order for the Court to better understand the parties' dispute, and to appreciate firsthand that this evidence is properly marked as 'sensitive,' the Government intends to provide copies of some of these materials to the Court, but requests to file the materials under seal." 

 First, by submitting material to advocate for judicial adoption of the submitter's position, the material must be seen as "judicial documents." These materials are more judicial documents than, for example, the documents submitted in support of a motion to compel discovery in Alexander Interactive, Inc. v. Adorama, Inc., 12-cv-6608 (Castel / Francis), 2014 WL 4346174,at *2 (S.D.N.Y. Sept. 2, 2014) (they "presumably will be necessary to or helpful in resolving that motion. They are, therefore, judicial documents.) 

 See also, In re Omnicom Grp., 2006 WL 3016311 at *2. (a "series of letter briefs with accompanying exhibits…certainly qualify as judicial documents"); Schiller v. City of N.Y., No. 04 CIV. 7921(KMK) 2006 WL 2788256, at *1 (S.D.N.Y. Sept. 27, 2006) (briefs and supporting papers submitted in connection with a dispute over the confidentiality of discovery materials were "created by or at the behest of counsel and presented to a court in order to sway a judicial decision" and were therefore "judicial documents that trigger the presumption of public access").    Here, the Government says the judicial documents or "materials... contain private information."

As stated earlier today by your fellow SDNY Judge Paul G. Gardephe, the proper approach is to redact private information, not any blanket protective or sealing order. See, e.g., US v. Hoskins, 20-cr-399 (PGG), heard at 11 am, and here, and US v. Dejesus, et al., 20-cr-397 (PGG), heard at noon. See also, US v. Fowlkes, 20-cr-309 (Nathan).    The US Attorney's Office is now systematically requesting to impose restrictions on information. While Federal Defenders counsel in the three above-cited cases have opposed blanket protective orders, in this case it appears that they too wish to submit materials - judicial documents - under seal.   

The interest of the press and public is different, and Inner City Press is attempting to timely assert that right. (I had thought we had until 5 pm today, but note that the US Attorney's Office submitted a letter...." Full letter on Patreon here.

 While receipt was acknowledge on August 28, this went straight into the ether, sealed, on August 31: "Re: United States v. Lawrence Ray, 20 Cr. 110 (LJL) Dear Judge Liman: Per the Government’s August 30, 2020 letter (Dkt. 43) and the Court’s subsequent order (Dkt. 44), the Government submits the enclosed exhibits under seal. These exhibits primarily correspond to an August 18, 2020 written request from defense counsel that the Government dedesignate as sensitive the following materials: A. The two videos used as exhibits in the Government’s March 2020 bail argument: (1) IMG_2274 from [Female-1]’s iCloud; (2) IMG_0389 from [Female-2]’s iCloud1 B. From the 3/5/20 production: (1) All of the Sensitive soundcloud and youtube videos;2 (2) Ray 2006/2007 emails/documents (documents provided to law enforcement by Ray); (3) Ray Lawrence [DOI court and other records]3 C. From the 4/21/20 production: (1) 1B47 - Larry Ray Phone; (2) 1B48 - Larry Ray Phone." We'll have more on this.

Previous February 26 thread here.

 On March 2 Ray, now required to pay Federal Defenders for representing him - and what rate is not yet cleared - argued for but was denied release on bail. Federal Defender Marni Lenox said that Ray's history of orders of protection were due to the ugly child custody dispute; Assistant US Attorney Danielle Sassoon reminded Magistrate Judge Fox that it was in connection of "abducting" his 17 year old daughter.

 Judge Fox inquired into how the government can link ledges about prostitution and sex trafficking earnings to Ray. AUSA Sassoon said Ray used women to do his banking and carried around a backpack of cash, as well as his stable of Go Daddy domain names. Inner City Press live tweeted thread here.

The case is US v. Ray, 20-cr-110 (Liman).

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