Document 1:20-cr-00338-PAE

UNITED STATES OF AMERICA, v PAUL M. DAUGERDAS, ET AL., Case 1:20-cr-00338-PAE Document 616 Filed 02/24/22 Page 36 of 67 A-5634 February 15, 2012 Page 97 (Witness excused) THE COURT: Before the defendants call Juror No. 1, I have before me an application on behalf of Juror No. 1 concerning closure of the courtroom. I have reviewed the letter submissions of the parties. Ms. Sternheim, do you wish to be heard further on that application? MS. STERNHEIM: Very brief briefly, your Honor. I am aware that aspects of Ms. Conrad's alcohol dependence are in the record, as we have heard today. However, I maintain that she does have the right to confidentiality regarding her condition and any treatment she may have received. I do not suggest that it should not be an area of inquiry, but I don't believe that it needs to be an area disclosed publicly. The record can be created so that all the parties of interest in this matter have the facts that they need to make their respective arguments. THE COURT: I've got it. MS. STERNHEIM: Thank you. THE COURT: These letters will be docketed and filed if they haven't already been. MS. STERNHEIM: The other aspects were HIPAA concerns regarding her personal medical conditions. With regard to inquiry concerning the disciplinary committee, my request is based on the fact that disciplinary proceedings, at least in the First Department, are not public proceedings, and it is my understanding that sealed records were unsealed for the purpose of this matter. However, again, that I believe was so that the parties would have opportunity to make their record here. I still maintain because it is a pending matter in the First Department, it should not be opened to the public. Once again, I am not stating in any way that counsel for either party should not be permitted to inquire. I understand the relevance of it. However, again, I do not believe that the inquiry into a matter which in and of itself was a closed proceeding, although revealed for purposes of this, and still pending should be a matter dealt with in open court. So, my request again is should counsel wish to inquire into the underlying aspects of an alcohol dependency and the disciplinary committee and the proceedings, that that be a matter that is not for public consideration. THE COURT: Thank you, Ms. Sternheim. Is there any other matter that you want to bring to the Court's attention before the witness is called? MS. STERNHEIM: Yes, your Honor. In connection with my letter, which I know the Court has furnished to counsel, I informed the Court prior to today that on advice of counsel Ms. Conrad will be asserting her Fifth Amendment right against self-incrimination. She will be doing that once called into this courtroom. Obviously, if she is granted immunity, she will answer the questions as ordered. THE COURT: Thank you, Ms. Sternheim. Does any other counsel wish to be heard further on the question of sealing of the courtroom? MR. GAIR: No, your Honor. MR. OKULA: No, your Honor. MR. ROTERT: No, your Honor. A VOICE: Your Honor, may I be heard? THE COURT: It's really not necessary. Have a seat. By letter dated February 8, 2012, Catherine Conrad requests that any questioning during this hearing concerning her medical suspension in proceedings held before the departmental disciplinary committee of the First Judicial Department be conducted in a closed courtroom. A party seeking to close the courtroom to the public must demonstrate "an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and the trial court must make findings adequate to support the closure." Presley v. Georgia, 130 S.Ct 721, 724 (2010) quoting Walker v. Georgia, 467 U.S. 39, 48 (1984). The information Ms. Conrad seeks to shield from public view has already been disseminated. But the various court filings in support of the defendants' motion for a new trial include, among other things, Conrad's disciplinary records and related court filings and her psychological evaluations. Given these prior disclosures, there is no overriding interest of Ms. Conrad that is likely to be prejudiced. Moreover, the rights of the defendants in this criminal case to a public proceeding trump Ms. Conrad's own parochial interest. Accordingly, her application is denied. I'd ask at this time that the marshals bring Ms. Conrad out. MR. OKULA: Your Honor, before they bring her out, may I be heard briefly? THE COURT: Certainly. MR. OKULA: I have spoken with Mr. Gair, and we understand that the procedure is that Mr. Gair is going to call Ms. Conrad and that she is going to invoke her Fifth Amendment rights. Your Honor has before you an application that we have submitted requesting that she be compelled to testify and be given use immunity in connection with that testimony. I want to be perfectly clear that in connection with this hearing, although Mr. Gair is calling Ms. Conrad as a Page 99 Page 98 Page 100 SOUTHERN DISTRICT REPORTERS (25) Page 97 - Page 100 DOJ-OGR-00009238 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 161 Filed 02/24/22 Page 29 of 130 A-5714 C2GFDAU1 Brune - direct 257 1 Q. And provided assistance to you up to the point of voir dire, correct? 2 A. He -- 3 Q. Prior to trial? 4 A. He provided assistance through voir dire, correct. 5 Q. And there was also Julie Blackman who was hired by Kramer Levin, correct? 6 A. Correct. 7 Q. You all were working somewhat collaboratively at least with Kramer Levin? 8 A. That's right. 9 Q. And tell me about your hiring of the Nardello firm? 10 A. That was something that was done together with the Kramer Levin firm. Mr. Nardello, as you may know, was an Assistant United States Attorney and is now a private investigator. 11 Q. And his motto, at least according to his website, is "We find out." Do you recall that? 12 A. I have to say it's been a while since I've looked at his site, but that sounds like an accurate description of what he strives to do. 13 Q. Although he is obviously a lawyer having been an assistant, he specializes now investigative work, is that correct? 14 A. That's my understanding of what he does. 15 Q. And you all -- I'll use that south of the Mason Dixon line term for you and the Kramer Levin firm -- hired him to do SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009318 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616220 Filed 02/24/22 Page 48 of 130 A-5731 274 C2GFDAU1 Brune - direct 1 Q. You could have, but you didn't, correct? 2 A. That's correct. 3 Q. Now, other defense counsel raised questions or concerns 4 about various potential jurors, correct? 5 A. Now, you know that there was a joint defense agreement and 6 I'm not by my answers in any way intending to waive it, but 7 there certainly was a discussion and I think all of the defense 8 counsel spoke their minds about prospective jurors. We were 9 making our challenges collectively, so we had to work it out. 10 Q. And here in court during the process of voir dire with the 11 judge, various defense counsel were raising issues and 12 concerned, correct? 13 A. That's right. 14 Q. And some of those issues and concerns were not based on a 15 hundred percent knowledge, correct? 16 A. That's certainly so. 17 Q. And some of it was just based on gut feelings about the way 18 people were acting or looking, correct? 19 A. That's right. 20 Q. So it wasn't based on perfect knowledge, correct? 21 A. Unfortunately, that's true of jury selection in general. 22 It certainly was not based on perfect knowledge. 23 Q. Now, you recall Mr. Aponte? 24 A. I think so. 25 Q. Well, do you recall that there was a juror who had criminal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009335 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 60 of 117 A-5903 1 CAC3PARC 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF NEW YORK 3 -------------------------------x 4 UNITED STATES OF AMERICA, 5 v. 09 CR 581 (WHP) 6 DAVID K. PARSE, 7 Defendant. 8 -------------------------------x 9 10 New York, N.Y. 11 October 12, 2012 12 3:00 p.m. 13 Before: 14 HON. WILLIAM H. PAULEY III, 15 District Judge 16 17 APPEARANCES 18 19 PREET BHARARA 20 United States Attorney for the 21 Southern District of New York 22 STANLEY J. OKULA 23 NANETTE DAVIS 24 Assistant United States Attorneys 25 ZUCKERMAN SPAEDER Attorneys for Defendant PAUL SHECHTMAN SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009479 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 161 Filed 02/24/22 Page 71 of 117 A-5914 12 CAC3PARC 1 where you can have waiver, but ineffective assistance. And I 2 think it is that that Judge Easterbrook had in mind when he 3 said you have to think about each of these doctrines separately 4 and you can probably have every combination of them. 5 THE COURT: All right. 6 MR. SHECHTMAN: Look, on the prejudice prong, I would 7 just say this. There were acquittals on all but two of these 8 counts. Mr. Parse is not situated that much differently than 9 Mr. Brubaker, and the proof as it came in didn't come in much 10 differently. There is a sort of lovely irony here that the 11 government cooperator who the Jenkins lawyer dealt with him was 12 actually a witness, and so, the Kramer Levin firm got to 13 cross-examine him. And in a sense having him as a cooperator 14 was helpful to their side because they established that their 15 client, like the taxpayers and everyone else, was told 16 repeatedly this is lawful. What distinguishes these two men is 17 the, quote, backdate. 18 And what I've tried to say in my papers is I think the 19 government was very good at trial in turning this into a 20 backdating case. I don't think that's what the Deutsche Bank 21 records show. They are doing these in February and March and 22 putting them on February and March statements and they're 23 putting "as of." They're then going out to what are very 24 accomplished tax preparers who were getting February, March 25 statements. And know there was a mistake and are then filing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009490 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616220 Filed 02/24/22 Page 92 of 130 A-5777 C2GFDAU3 Brune - redirect 320 1 time that I took that approach. I don't think it changes the 2 picture because I don't think the Westlaw report itself has the 3 picture. But what I had in making this decision was I figured 4 they'd Googled, I Googled. I figured they didn't think she was 5 a suspended lawyer based on the Google search and the note to 6 the Court. I didn't think it was the suspended lawyer. But I 7 figured if they were going to raise the Google issue, I'd lay it out. 8 9 THE COURT: Did you ever consider consulting with the 10 government about the wild possibility that Juror No. 1 was in 11 fact a suspended lawyer, given your testimony right now that it 12 was your assumption that the government was also looking into 13 jurors on the internet? 14 THE WITNESS: I did not. I think that the government 15 and I come to different conclusions sometimes about things, but 16 I know -- 17 THE COURT: Why not? Why not? If you knew that -- if 18 it was your assumption that they were expending the same kind 19 of resources researching the matter as you were, 20 THE WITNESS: I'm a little bit in a zone where I'm not 21 describing my thought processes, because I didn't think about 22 raising it with the government. But what I'm trying to say is 23 I assumed that the government and its paralegals and all the 24 rest Googled the jurors and I don't always agree with them, but 25 they're pretty good investigators and they have access to more SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009381 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616220 Filed 02/24/22 Page 95 of 130 A-5780 Edelstein 323 C2GFDAU3 1 A. Yes. 2 Q. Is it not true, Ms. Edelstein, that on May 12, Theresa Trzaskoma, your partner, came to you and articulated to you her belief about possible juror misconduct by Juror No. 1? Yes or no? 3 4 5 6 A. No. 7 Q. Did Ms. Trzaskoma tell you that she had sent an e-mail earlier that day to the effect that Jesus, I think she's the 8 9 one, meaning that she thought Juror No. 1 was the suspended New York attorney. Did she tell you that? 10 11 A. No. 12 Q. Did you learn that at any point during the conversation with her? 13 14 A. No. 15 Q. Would you be surprised, Ms. Edelstein, if Susan Brune, your partner, described you earlier in her testimony today as a 16 17 person who when confronted with an issue, you're someone who demands the paper, wants to look at the underlying documents. 18 19 Is that fair? 20 A. Yes. 21 Q. So when Theresa Trzaskoma came to you, tell us your best recollection what she said to you? 22 23 A. I can't recall exactly. It was after Court that day on May 12th. We were walking across -- 24 25 Q. We being? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009384 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 161 Filed 02/24/22 Page 473 of 130 A-5732 275 C2GFDAU1 Brune - direct 1 convictions, correct? 2 A. Yes. 3 Q. He was the one who had the turnstile jumping conviction, 4 correct? 5 A. Did he have a burglary case as well? 6 Q. Yes, the one who was the lookout for the burglary, correct? 7 A. Sounds like I'm right. That's what I recollect. 8 Q. And you didn't object to someone with a criminal conviction 9 serving on the jury, correct? 10 A. We had to make choices among the panel and he wasn't my 11 favorite, but we did not use a challenge for him. 12 Q. So am I correct, Ms. Brune, that the fact that someone has 13 a criminal conviction in and of itself was not dispositive for 14 you, correct? 15 A. It was not. 16 Q. And one of the issues that was raised from the very 17 beginning and ran through the voir dire process was any 18 particular person's availability to sit for what promised and 19 in fact turned out to be a very long trial, correct? 20 A. The availability issue was a big one during voir dire. 21 Q. And in fact Judge Pauley opened up with the statement about 22 the length of the trial and the scheduling issues, correct? 23 A. That's right. 24 Q. And you recall that Judge Pauley asked many jurors about, 25 specifically about their availability during the three-month SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009336 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616220 Filed 02/24/22 Page 978 of 130 A-5782 C2GFDAU3 Edelstein 325 1 attorney? 2 A. I don't believe she had formed a belief about the New York 3 attorney. She mentioned that there was an attorney, a 4 suspended attorney with the same name, and that after having 5 received the note from Juror No. 1 that mentioned several legal 6 concepts, she had thought that could it possibly be they were 7 the same person. 8 Q. And at what point did you ask Ms. Trzaskoma for the 9 evidence, the underlying documents or information that led her 10 to believe that there was a possible connection between Juror 11 No. 1 and the suspended New York attorney? 12 A. I didn't realize that there was a document that she was 13 basing any belief on. It was the fact that there was a 14 suspended lawyer with the same name. 15 Q. Well, didn't you ask how did you form this belief or what 16 did you look at to see that there was a suspended New York 17 attorney? Did you ask that question? 18 MR. GAIR: Objection. Three questions. Compound. 19 THE COURT: Overruled. 20 A. No, I did not. 21 Q. So do you mean to tell us that you at no point asked 22 Theresa Trzaskoma for what underlying information she saw that 23 led her to believe that there was a possible connection between 24 Juror No. 1 and the suspended New York attorney? Yes or no. 25 A. I'm not sure that was a yes or no question, but she SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009386