1.Snowstorm Scheduling, Juror Availability, Trial Preparation, and Cooperator Penalty Questioning
64 linesUNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x UNITED STATES OF AMERICA,
v. 14 Cr. 68 (KBF) ROSS WILLIAM ULBRICHT, Defendant. ------------------------------x New York, N.Y. January 26, 2015 9:27 a.m. Before: HON. KATHERINE B. FORREST, District Judge APPEARANCES PREET BHARARA, United States Attorney for the Southern District of New York BY: SERRIN A. TURNER TIMOTHY HOWARD
Assistant United States Attorneys JOSHUA LEWIS DRATEL LINDSAY LEWIS JOSHUA HOROWITZ Attorneys for Defendant - also present - Special Agent Vincent D'Agostino Molly Rosen, Government Paralegal Nicholas Evert, Government Paralegal
(In open court; jury not present)
COURT CLERK: This is the continuation of the matter on trial, the United States of America v. Ross Ulbricht, 14 CR 68.
Counsel, state your names for the record.
MR. TURNER: Good morning. Serrin Turner for the government. With me at counsel table is AUSA Timothy Howard, Special Agent Vincent D'Agostino from the FBI, and Molly Rosen, a paralegal from our office. Nick Evert will be here shortly.
MR. DRATEL: Joshua Dratel for Ross Ulbricht standing beside me. Joshua Horowitz is here as well. Lindsay Lewis is trying to get into the building downstairs.
THE COURT: Mr. Horowitz gets an A because he's always the first one here of anyone. Thank you. Good morning, everyone.
We have a couple of things to go over. I want to talk first about the timing for the next few days in light of this significant snowstorm that actually we're in the process of getting right now. The snow has started outside. My intention is to adjourn today at noon. We have got some jurors who come from Rockland County and some who really need to get home because they are necessary for childcare and other things and I don't want them to be stuck here. It can create some very difficult issues.
Then my thought is that we would, in light of the -- and I have been monitoring the reports and it doesn't seem like this is a fake storm that's going to go away, it seems like it's a real one -- that we'll tell them right now that we will not have trial tomorrow. I want to hear from you folks if anybody opposes this, and then for Wednesday, I think it depends on whether or not a lot of snow is, in fact, dumped on the area and how quickly people are able to get it cleaned up and what the conditions are where some of the jurors are.
I'm going to have Joe communicate with some of the jurors who are in the more far-flung locations on Tuesday to see whether or not they're able to get out, and then he will communicate with them all by text or phone to let them know. They're also going to be instructed for Wednesday to call into the court's auto line, which is if the courthouse is closed, generally there's an auto line that everybody can call and Joe will make sure they have all got that phone number, but if the court's closed, that's it. It doesn't matter if they can get in. But if the court is not closed but Manhattan is okay but folks can't get in from Westchester or Rockland, then we're going to have to hold off on Wednesday, as well. I will nevertheless tell them that Wednesday we will start not at 9:30, but at 10:00 for them. So the best-case scenario would be starting at 10:00, which would mean we would start at 9:30, just to give people a little bit of extra time to get through this.
How does that sound to you folks?
MR. TURNER: Sounds perfectly appropriate.
MR. DRATEL: That sounds exactly the same.
THE COURT: So we'll see. It may mean that we end up with half a day today and then Thursday and nothing in between but we'll play it by ear. I think we have all lived through some snowstorms now and we have had snowstorms with less snow that have resulted in significant disruption.
I wanted to fill you in on Juror No. 4. I have been in communication with Juror No. 4's employer regarding the requirement of this particular employer to use vacation time after two weeks of trial time. Now, we don't quite hit two weeks until I think half a day after we adjourn today at noon for her. We have been trying to get them to accommodate this unusual situation where it's a longer trial than most trials. Jury selection here was quite involved. I have not heard back whether or not they'll be able to make the accommodation.
If they can't, we'll have to discuss what to do next and confer with Juror No. 4 as to how she feels about it. We do know it was a concern of hers, which is why we have been trying to get an accommodation.
Juror No. 10 was the juror who has a potential issue around the 14th of February that she had previewed up at the side bar during voir dire. That may or may not be a problem. We'll play that out as we go, but those are the two that I'm aware of. I just wanted to fill you in and make sure that everybody has the same information about those.
Witness lists: I've gotten this morning a revised witness list from the government. I take it has been shared with defense.
MR. TURNER: Yes, your Honor.
THE COURT: Tell me what's different. I can compare the two but why don't you give me a summary.
MR. TURNER: One moment, your Honor.
THE COURT: I see. You put in dates which will now be different yet again.
MR. TURNER: Right. Actually it looks like this is slightly outdated. Gary Alford will be our next witness. Then Alex Wilson -- I'm sorry -- Alex Miller from Stack Exchange, that will be a brief witness who is just a document custodian.
In terms of what else is different, I believe the only other difference is we are no longer planning to call Andrew Michael Jones as a witness. I'm sorry. We are planning on calling Vincent D'Agostino, the special agent here, to give brief testimony. Basically we have shortened it. Overall, we have shortened it. The witnesses we cut are shorter, their testimony.
THE COURT: Terrific. Thank you.
Anything further on this? We'll pick up with Mr. Beeson this morning and hopefully we can get him off the stand and he can get on a plane before he gets snowed in.
MR. TURNER: Dubious, but there's hope I guess.
THE COURT: You think it's too late for that?
MR. TURNER: Probably. We would note that we have asked defense counsel witness list and are still waiting for a witness list from the defense.
THE COURT: I had told Mr. Dratel that I would start pressing him on Wednesday, so I'll press you whenever you're ready but no later than Wednesday. Do you want to preview anything.
MR. DRATEL: We did send the government an expert notice yesterday last night.
THE COURT: All right.
MR. DRATEL: Probably the extra time today, we can put together, probably overnight, for the government so we can get some others. There may be one daytime decision that -- in the next day or two.
THE COURT: We'll stay tuned for that. The jury charge: You folks should have received a copy of the jury charge, which we used yours as a reference and I went through each of the differences between that what we believe the correct statement of the law is and figured out what you had changed from my Delva (ph) charge and decided whether we cared.
In light of the fact that we'll have tomorrow off, if you folks could get us the Word version with comments, track changes, by tomorrow late afternoon, 5:00, 6:00, that would be helpful. That way, we can start in on it Wednesday morning.
MR. DRATEL: What we were thinking of doing would be to communicate between the parties to see if we can narrow the issues that we presented to the Court.
THE COURT: Terrific.
MR. DRATEL: It would give us additional time.
THE COURT: Terrific. One of those I note, and I may need letters about this, you folks will need to figure out whether or not you'd like to state your position in a letter so that it can be something that we can all focus on. It has to do with a CCE. So the continuing series of violations, as you folks know, there's a fair amount of case law on this. There's the Richardson case and a number of other cases, but there seems to be a difference of view, certainly as between you folks. And it will be for you to let the Court know whether or not you've got support for your respective positions as to, number one, whether or not there has to be a specification of the series of violations in the verdict form, which I think the answer to that question is no; and the extent to which they need to be listed for the jury specifically in the charge or elsewhere, and I think the answer to that is open to debate.
In terms of the indictment, I think that it does not need to be listed in the indictment, though there are some courts which suggest that it's useful to do so.
But I'd like to get your views on the open issues with respect to the CCE because how that gets dealt with is very important, all right. Does that make sense?
MR. TURNER: We'll do that.
THE COURT: Terrific. Thanks.
We can fold in the Alleyne issue relating to CCE into that process, perhaps. There may not even be any debate between you folks as to whether or not that needs to occur.
I'm on Part 1 for the next two weeks. Because of the delays in the trial -- we pick Part 1 a year or more in advance. Originally, we were not scheduled for trial at this time. That's fine.
As you folks know, and the audience may not know, Part 1 is like judge-on-call. It's like being the doctor-on-call. It's 24/7 and it's for a two-week period. Typically, there's nothing after 7:00 p.m., so it's not really a difficult thing in the middle of the night.
It does mean we've got things shifted around so that I can take things before I come out here. I can take things at the break. I can take things at lunch hours. It does mean that there may be something if it was incredibly urgent that couldn't wait for a break or a lunch hour that I have to take. That would be unusual. It does happen. As you folks know, you've probably all been people on the side of coming into judges who are in Part 1 needing something urgent. We'll play that by ear. I don't expect any big issues. I really don't.
That's what I have. What do you have? Anything?
MR. TURNER: No, your Honor.
THE COURT: Mr. Dratel.
MR. DRATEL: No.
THE COURT: We're waiting on seven. It is possible that one thing I had considered was whether or not -- it had not started snowing until about an hour ago -- that there may be some people who were sufficiently concerned about the snow that they just are not going to chance it. We haven't heard from the seven. Is that right? Two are on their way. The ones who are furthest out are actually already here. Hopefully, we'll get the others soon.
If there's nothing else, we'll take a break until these folks arrive. One thing, Mr. Dratel, as long as we have a minute and I don't know, is there another cooperator on this list?
MR. TURNER: Yes, Mr. Duch.
MR. DRATEL: Yes.
THE COURT: If you're going to go into your doing this, the line of cross, which is not atypical, you're doing this to get a break on the penalty, there was an objection during -- I was rereading the transcript -- there was an objection during Bates for life, a lifetime of imprisonment. Don't mention "life." You can do "substantial." You can do "significant." You can do lots of other words, but lifetime imprisonment, unless you can show that they were going to be getting life -- in other words, mandatory life or something else, the range is not something that you should be going into.
As you know, there's lots of cases on this. It actually treads into the area of jury nullification, so life in the situation of the cooperators is off limits.
MR. DRATEL: I think I'm permitted to go into it.
THE COURT: To life?
MR. DRATEL: I understand the Court's ruling, but I'm making my record.
THE COURT: Why don't you give me a case that says you can go into life imprisonment for a range. It's not a statutory -- there's no requirement for these folks. There are so many crimes which carry up to life, and the use of the word life, when somebody reasonably expects that they're going to get far less, conveys to the jury a sense that this particular trial involves something different. Now, to the extent that that's the message to be conveyed, that's the message that we dealt with during the in limine motions.
MR. DRATEL: I'll look at the cases, but in my experience and what I think is appropriate based on the number of factors, one of which is when this guy pled guilty, he was told you can face up to life in prison, I don't know, I don't think it's your Honor, I think it's Judge Griesa is the judge on that case, but the --
THE COURT: Not Duch, Bates.
MR. DRATEL: So whatever the maximum penalty is, they're told, and whatever he was charged with is a factor in a decision to cooperate.
THE COURT: Well, if you have particular facts relating to pressure placed upon a particular cooperator, that's what I want to elicit from you. If there's a particular reason why for this cooperator it's more relevant than it might otherwise be, but there are a series of cases on naming the penalties and going into things that are more than just the words of substantial, significant, more than a decade, and there are lots of ways of getting at it.
But you give me what you would like and if Mr. Duch, if there's something really specific for him, so be it.
MR. DRATEL: Also, I thought it was relevant for Bates, too, but obviously the Court has ruled, in terms of his own --
THE COURT: I didn't sustain the objection. I let it go because it was already out and I didn't want to pause on it. I thought I would preemptively discuss the issue.
Sometimes the government doesn't care about a particular point. This is my view.
Does the government have a position on this?
MR. TURNER: For Bates?
THE COURT: Not Bates, because Bates is done and locked and loaded. I'm not going to go back over Bates.
MR. TURNER: For Duch, to be candid, I think we would draw on direct the maximum penalty is he's facing 40 years.
THE COURT: The maximum for him is 40?
MR. TURNER: Yes.
THE COURT: He's looking at a (b)(1)(B)?
MR. TURNER: Yes.
MR. DRATEL: But it's (b)(1)(A) weight.
THE COURT: But if it's (b)(1)(A) weight and he's pled, then under Alleyne, he can't get a statutory maximum greater than 40.
MR. DRATEL: I understand that, but when he made the decision to cooperate --
THE COURT: You can always use (b)(1)(A) weight for purposes of the 3553(a) factors also, but he can't raise a statutory max now.
MR. DRATEL: No, I understand that in what he's facing, but what I'm saying is when he was sitting there with his lawyer deciding whether to cooperate, he was aware -- if he's not, he's not, but you know, that he was facing a significantly greater penalty.
THE COURT: You folks will present to me whether or not there are particular facts that were used to pressure that fellow that would be relevant to his bias. Obviously, bias for a cooperator is a big point, which the defense can freely explore, but I want to make sure that we're within the limits of the law.
I think we're still waiting on folks. Let's take a break until they all show up.
(Continued on next page)
THE COURT: Let's bring out the jury.
(Jury present)
THE COURT: All right. Ladies and gentlemen, let's all be seated. Before we get going I want to fill you in on the schedule for the next few days. Today, because of the snow, we'll be ending at noon and I know that the snow itself isn't supposed to really become particularly bad until three o'clock or so or even later but I am concerned about some of the folks who are in further removed areas being able to be sure they can get home in a safe way. So he we will end at noon today. We will not have trial tomorrow.
While it's possible the storm will pass us by, I think it's sufficiently looking like it's going to land here that I don't want to have people wondering about what kinds of childcare arrangements and other arrangements they need to make. So we're going to go ahead and call it a snow day for tomorrow for you folks essentially no matter what happens.
For Wednesday my hope is that we'll be able to resume, that tomorrow, late tonight some time the snow will stop or tomorrow early they'll get the roads clear and we'll be able to for Wednesday get people here. To give you a little bit more time we'll start at ten a.m. on Wednesday. We'll still only go till five but we'll start at ten a.m. on Wednesday.
Now with that said, Joe is going to speak to some of you to get -- he's got all of your contact information. Make sure he's got exactly where you are going to be or a cellphone to connect with you folks. But he's going to connect with some of you who are living outside of the city to see how the conditions are on Wednesday. Because even though Manhattan's clear and the courthouse is open, that doesn't mean you are going to be able to get in if you are snowed in in Rockland County. So Joe will be communicating with you folks. As you know, we can't go forward unless you are all here so we need to assess the conditions where you folks are.
If it looks like it's just awful there's an auto line and Joe will give you the phone number for it for the court, the entire building. And that will tell you if the courthouse is closed. If the court house is closed there is no way we are going to be having trial. It's possible that if the courthouse is open that we won't have trial Wednesday if some of you can't get here.
So bottom line to summarize, today at noon, then we're going to call off tomorrow, Wednesday at ten a.m. that's what we're hoping. Thank you.
I want to remind you, sir, you are still under oath from Thursday.
Mr. Dratel, do you want to continue, sir?
MR. DRATEL: Yes. Thank you, your Honor.