Appellate Judges

David Correia’s Goodwin Lawyer William Harrington Fails In Attempts To Seal Documents

The bottom line is whether civil or criminal, there are very rare reasons or circumstances for filing under seal. This S.D. NY federal judge applied the law.

LIT COMMENTARY

Unlike in the CFPB v. Ocwen case in Florida, this criminal trial in New York – which LIT has previously written about – did not allow documents to be filed under seal and ex parte. And the same firm, Goodwin was once again filing for this relief.

The bottom line is whether civil or criminal there are very rare reasons and circumstances for filing under seal, yet judges on benches nationwide are signing orders every day allowing sealing to occur. It’s a mini-pandemic of it’s own and should be halted.

In SDNY Parnas Case This Correia Unsealing Ordered By Judge Oetken Noting Press Filing

SDNY COURTHOUSE, Nov 29

Whether any US government agency engaged in wiretapping not authorized by a court in connection with the prosecution of David Correia, Lev Parnas, Igor Fruman and Andrey Kukushkin came up near the end of a conference in the case on December 2, live-tweeted by  Inner City Press (“ICP”). ICP has opposed sealed filings – now possibly including Correia’s pleas agreements whether docketed or marked.

On November 12, notingICPs’ advocacy to unseal, Judge J. Paul Oetken has ordered the full unsealing of Correia’s declarations, in five business days.

Full order here, including:

“After considering counsel’s justifications for sealing or redacting the declarations (see Dkt. No. 128),1 [FN1: The Court also takes notice of the letter filed by Matthew Russell Lee advocating for public access to these declarations. (See Dkt. No. 126)], the Court orders counsel to promptly file the unredacted declarations on the public docket.”

And now, as advocated for by ICP, here it is:

1. “I am moving to withdraw because Mr. Correia has not paid me for any of the legal work I have performed for him.

Mr. Correia retained me around the time of his arrest.

2. Since that time, Mr. Correia and I have discussed fees on many occasions and he has expressed confidence that he would soon be in a position to pay for his legal representation.

As recently as September 19, 2020, Mr. Correia said that he hoped he could soon pay his fees. But he has not been able to do so.

3. Based on my conversations with Mr. Correia, and his continued inability to raise funds, I believe that his finances will qualify him for appointed counsel.

4. Until last week, an important factor in my decision to give Mr. Correia more time to pay was the very limited scope of the prior charge against him. It alleged his participation in a single conspiracy that primarily involved a Cannabis business and a small number of Fall 2018 political contributions in Nevada.

5. The charges against Mr. Correia changed dramatically this past Thursday, September 17, 2020, when the Government filed a superseding indictment (the “S1 Indictment”) that vastly expands the scope and complexity of charges against Mr. Correia.

6. Count Seven of the S1 Indictment newly alleges that Mr. Correia engaged in a securities fraud scheme involving an insurance-product company, claiming that 7 victims were defrauded in excess of one million dollars over almost 7 years based on false statements about the finances of that company.

7. Counts Two and Three of the S l Indictment further add charges that Mr. Correia made false statements and submitted falsified records to the FEC related to whether a different entity – a liquified natural gas company – was a bona fide business enterprise.

8. Given the breadth of the new allegations, this is now a much more extensive case than the one I had been retained to def end.

9. Regarding the case calendar, prior to the S l Indictment, the Court set a case schedule. Last week, the parties began discussing the need to request that the Court adjust that case schedule in light of the new charges, ongoing discovery, and the COVID pandemic. a. Discovery.

The Government has made voluminous productions, but they are nonetheless ongoing. In a teleconference on Friday, the Government indicated that it had a “fair bit” of additional discovery to make, including a “sizeable email production” that it anticipated making in 10 days.

b. Motions. The Court had previously set a pretrial motions deadline of October 5, 2020. The parties are discussing the motion schedule in light of the SI Indictment, and I anticipate a request to adjourn those dates.

c. Trial. A trial date was also set for February I, 2021. Though still almost five months away, there is a question as to whether this date will hold given current court procedures that severely limit jury trials in the district during the pandemic.

10. I informed the Government that I intended to file this withdrawal motion and that nonpayment is the basis of the motion. I have not otherwise provided them with the details in this declaration and I respectfully request that the Court accept it ex parte and under seal.”

So where is Avenatti’s filing?

The logic also applies, inter alia, to the still withheld financial declarations of Michael Avenatti, here.

On October 29 Correia pleaded guilty to two counts.

Correia’s taxpayer paid lawyer, William Harrington of Goodwin Proctor, confirms he’ll plead guilty.

Turns out he prefers his name to be said “Korea,” not Correia like belt in Spanish.

Judge Oetken making requires findings under the CARES Act. Will he do DPPA too?

Correia is pleading to Counts 2 and 7 of the superseding indictment:

False Statements to the FEC and The Fraud Guarantee Scheme.

Correia went three quarters of the way through college, he says. Never treated for mental illness. Gastro-intestinal is his only doctor

AUSA Doug Zolkind, insisting on calling him “Correia” like belt, not Korea, runs through the elements of each count. Judge Oetken: Are you a US citizen? Correia: Yes, your Honor.

Now the plea agreement that the US Attorney’s Office has agreed to for Correia:

Guideline sentence of 33 to 41 months. Fine of $15,000 to $150,000.

Judge Oekten: Tell me what you did.

Correia: I have a statement. My declaration said things that were false, I filed it to get FEC to end their investigation. I knew it was wrong.

Judge Oekten: What about count 7?

Correia: I have false info about Fraud Guaranty.

Correia adds that he thought Fraud Guaranty was a great project.

AUSA Zolkind: Did the defendant know it would be carried out by interstate wires?

Correia:  They were in fact used.

AUSA Zolkind says woulda used emails. He references Parnas and Fruman

AUSA Zolkind: They committed straw donations. Correia filed a false affidavit, about “substantial bone fide” investments. He knew they were false, for the $325,000 donation. Also he lied about Fraud Guaranty, which had no operations nor insurance products.

AUSA Zolkind: 7 victims invested in Fraud Guaranty, between $250,000 and $500,000 each. But this paid Parnas’ rent and luxury cars, retail store purchases. Multiple meetings were held in Manhattan.

Correia’s lawyer: Mr. Correia got very little of the money.

Judge Oetken: Mr. Correia, I hereby accept your guilty plea. For sentencing, how about February 12?

Correia’s lawyer wants it earlier.

Judge Oetken: February 8, at 11:30 am, then.

AUSA Zolkind: The plea agreement says he withdraws mandamus in 2d Cir.

AUSA Zolkind wants to file plea agreement under seal.

Judge Oetken: I don’t usually put plea agreements on the docket. Then people could figure out who’s a cooperator.

AUSA Zolkind: But press could request it. So we want it redacted.

Judge Oetken: I won’t mark it as a court exhibit. Adjourned.

[ICP: The plea agreement is clearly a judicial document, whether docketed or not, whether made a court exhibit or not (these may be seen as evasions of transparency.]

On September 17, a superseding indictment “LEV PARNAS and DAVID CORREIA were charged in a Superseding Indictment with conspiring to commit wire fraud in connection with their efforts to raise funds ostensibly for their business, “Fraud Guarantee.” The Superseding Indictment also includes additional campaign finance charges against the defendants.

In October 2019, PARNAS, CORREIA, IGOR FRUMAN, and ANDREY KUKUSHKIN were charged in a four-count indictment alleging that each of the defendants conspired to violate the ban on political donations and contributions by foreign nationals.

In addition, PARNAS and FRUMAN were charged with conspiring to make contributions in connection with federal elections in the names of others, and with making false statements to and falsifying records to obstruct the administration of a matter within the jurisdiction of the Federal Election Commission (“FEC”).

The Superseding Indictment returned today – in addition to charging PARNAS and CORREIA with conspiracy to commit wire fraud – charges CORREIA with making false statements to and falsifying records to obstruct the administration of a matter within the jurisdiction of the FEC; charges PARNAS, FRUMAN, and CORREIA with soliciting a foreign national to make donations and contributions in connection with federal and state elections; and charges PARNAS, FRUMAN, and KUKUSHKIN with aiding and abetting the making of donations and contributions by a foreign national in connection with federal and state elections.

The case is assigned to U.S. District Judge J. Paul Oetken in the Southern District of New York. Trial is currently scheduled for February 1, 2021.”

Then, this: “On September 21, 2020, counsel for Defendant David Correia submitted to chambers a motion to withdraw as counsel for Mr. Correia, with declarations addressing the reasons for their motion to withdraw.

They request that the declarations be filed under seal and ex parte, “as they pertain to Mr. Correia’s relationship with counsel.”

Any redaction or sealing of a court filing must be narrowly tailored to serve whatever purpose justifies the redaction or sealing and must be otherwise consistent with the presumption in favor of public access to judicial documents.

See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006).

Counsel’s representation that the declarations “pertain to Mr. Correia’s relationship with counsel” is insufficient to meet that standard.

To the extent that the declarations include privileged or other confidential communications between counsel and Mr. Correia, they may properly be redacted.

However, the facts that Mr. Correia has not paid his attorneys’ bills and that he may qualify for court-appointed counsel are not privileged and do not, in the Court’s view, meet the Lugosch standard.

Accordingly, counsel for Mr. Correia

(1) shall promptly file their motion to withdraw on the public docket,

(2) shall, on or before September 25, 2020, submit to chambers proposed redactions of their declarations, together with a letter explaining how such redactions satisfy the Lugosch standard, and

(3) shall promptly work with Mr. Correia on the retention of replacement counsel and/or preparation of a financial affidavit in support of court-appointed counsel.

The Court will then schedule a conference to address counsel’s motion to withdraw.”

ICP filed, now docketed, this:

“Hon. J. Paul Oetken, United States District Judge Southern District of New York, 40 Foley Square, New York, NY 10007

Re: US v. Correia, 19-cr-725-3 (JPO) – Motion for Leave To Be Heard / Press Request To Unseal

Dear Judge Oetken:

On behalf of Inner City Press and in my personal capacity, I have been covering the above-captioned case since it was filed. This concerns documents filed under (requested) seal in the case, 19-cr-725.

Defense counsel have “request[ed] that this motion be accepted ex parte and filed under seal.”

This is opposition.

Formally, PLEASE TAKE NOTICE that Inner City Press and its undersigned reporter, in personal capacity, will move this Court before Honorable J. Paul Oetken, U.S. District Judge for the Southern District of New York, at a date and time directed by the Court, for entry of an order granting permission to the heard on/and the unsealing of documents filed and/or submitted in 19-cr-725 (JPO), pursuant to Docket No. 122 in that case and the Court’s inherent power, and such other and further relief as the Court deem just and proper.

As the Court is aware, the public and the press have a presumptive First Amendment and common law right of access to criminal proceedings and records. See Press Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508 (1984).

The presumption of openness can only be overcome if “specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press–Enterprise Co. v. Superior Court, 478 U.S. 1, 13-14 (1986)

Non-parties such as Inner City Press and myself have standing to intervene in criminal proceedings to assert the public’s right of access. United States v. Aref, 533 F.3d 72, 81 (2d Cir. 2008).

Recently in SDNY Magistrates Court financial information about defendants has been read out in the public record, including for the appointment of Federal Defenders. See, e.g., US v. Castro, et al., 20-mj-8994 (Freeman) & here.

Those and other defendants whose financial information have been disclosed including in Magistrates Court this summer had the same arguments as made by counsel to defendant Correia, that the information might be used against them.

And yet the other defendants’ information was disclosed. As stated in US v. Harris, 707 F.2d at 663, facts should be determined through adversarial proceedings.

While beyond the scope of this letter, the Court could limit the use in this case by the prosecution of the unsealed information, without unnecessarily overriding the presumption of public access.

Here, the requested sealing(s) and withholdings go 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.

The U.S. 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 attending and reporting on court proceedings, members of the press “function[] as surrogates for the public.” Id. at 573. Inner City Press has covered the case(s) against Mr. Correia (and Mr. Parnas, et al.) for some time. See, e.g., October 2019, here.

In another pending case, US v. Edwards, 19-cr-64 (GHW), the Office had initially said that documents submitted by the defendant (described as the leaker of Paul Manafort’s Suspicious Activity Reports) should be put in the public docket.

Then, while Inner City Press is pursuing that, the US Attorney’s Office has stopped pushing. See also, here and here [more on this forthcoming.]

The documents at issue here should not be sealed and should be made available. Please confirm receipt & docket this timely responsive filing.

Thank you.

Respectfully submitted,

/s/ Matthew Russell Lee,
Inner City Press.”

Now on September 29, this:

Correia has gotten his free / taxpayer funded lawyer, but still no action on Inner City Press’ docketed opposition to the sealing:

“Attorney update in case as to David Correia (3).

Attorney (CJA) William Joseph Harrington for David Correia added.

Attorney (Retained) Jeffrey E. Marcus terminated.” CJA means Criminal Justice Act.

Back on February 3 SDNY Judge Oetken began the scheduled conference by shooting down the FISA violation arguments, citing decisions by the Second Circuit and his fellow SDNY Judges Edgardo Ramos and Paul Engelmayer. He asked the prosecutors about the progress of discovery.

There are still 20 devices not “cracked,” although it is complicated because with subpoenas for iCloud accounts, multiple devices’ information is revealed.

A trial date of October 5 was set, with another conference if necessary penciled in for July 16 at 2:30 pm.

Afterward in front of 40 Foley Square Parnas’ lawyer Bondy snarked at the impeachment trial as a trial by friends; Parnas said he’s trying to get the truly about Trump and Giuliani and Ukraine out, but declined to answer if he is cooperating. Then he got into a big black car, saying he was glad to be back in New York.

ICP said it would be there- and it was. The case is US v. Parnas, et al., 19-cr-00725 (Oetken).

Disclaimer: LIT has questioned Matthew’s statements in his article regarding “CJA appointment” as it implies that William Harrington of Goodwin was appointed, yet Bill Harrington’s affidavit confirms he is withdrawing from acting as counsel – along with Marcus –  and we’re awaiting a response or correction in this regard.

Lev Parnas partner David Correia pleads guilty to lying about donation to Trump super PAC

PUBLISHED THU, OCT 29 2020 | REPUBLISHED BY LIT: NOV 29, 2020

David Correia, a business partner of Rudy Giuliani’s former associate Lev Parnas, pleaded guilty Thursday to conspiracy and to making false statements to election officials about a donation made to a political action committee that supported President Donald Trump.

Correia, 45, admitted in Manhattan federal court that he conspired with Parnas to defraud investors in their would-be fraud protection business, which was called Fraud Guarantee.

The plea hearing was conducted virtually over videoconference and phone lines because of the coronavirus pandemic.

Most of the money raised but not spent on that never-launched company went to Parnas, Correia’s lawyer told a judge.

Correia told a judge that in October 2018 he falsely swore to the accuracy of the contents of a declaration made to the Federal Election Commission because he wanted the FEC to end an investigation that he said he “believed at the time was unwarranted.”

Assistant U.S. Attorney Douglas Zolkind said that Correia had lied in his FEC affidavit by claiming that Global Energy Producers — a supposedly active company formed by Parnas and co-defendant Igor Fruman — had actually made a $350,000 donation in GEP’s name to the Trump super PAC America First Action.

In fact, Zolkind said, GEP was not an operational business and did not even have a bank account.

Instead, the $350,000 came from a mortgage on property owned by Fruman and was transferred to an account controlled by Parnas, who then funded the donation to the PAC under GEP’s name, according to the prosecutor.

Zolkind said that from 2012 through 2019, Correia and Parnas solicited investments from what eventually became seven people, who each contributed between $200,000 and $500,000 apiece, to fund Fraud Guarantee.

The company purportedly planned to offer insurance against fraud for investors in other ventures.

Fraud Guarantee never became operational, but Correia and Parnas “told the victims that this money was used exclusively for legitimate business,” the prosecutor said.

“This was false,” Zolkind said.

Instead of being used to launch and operate the business, the majority of the investor funds were withdrawn as cash, and sent to personal accounts. Some of that money was used for personal expenses such as for Parnas’ rent and luxury cars, the prosecutor said.

Correia’s sentencing was scheduled for Feb. 8.

He was ordered Thursday to forfeit more than $43,000 in connection with the Fraud Guarantee swindle.

Correia and Parnas previously were charged in 2019, along with two other men, with conspiring to violate the law banning political donations by foreigners.

Last month, when a superseding indictment was filed against all four men, FBI Assistant Director Bill Sweeney said of the charges against Correia and Parnas,

“We couldn’t say it better ourselves – the behavior alleged today is indeed fraudulent – guaranteed.”

Parnas, Fruman and the fourth co-defendant, Andrey Kukushkin, have all pleaded not guilty in the broader criminal case.

Giuliani, who is Trump’s personal lawyer, was not criminally charged in the case.

But as of last year, Giuliani was known to be under investigation by federal prosecutors in Manhattan, whose office he once headed before he became New York mayor for two terms.

Giuliani received $500,000 in 2018 for work for Fraud Guarantee, which he has described as “a combination of business advice and consulting, consistent with what my company does, and legal advice.”

Parnas and Fruman had worked with Giuliani on an effort to collect damaging information about the Democratic presidential nominee, former Vice President Joe Biden, and about his son Hunter Biden, in connection with the younger Biden’s board position at a Ukrainian natural gas company.

Giuliani in recent weeks has made repeated allegations of wrongdoing by the Bidens in Ukraine and in connection with business in China. Joe Biden denies any wrongdoing.

Both Parnas and Fruman were subpoenaed last year by the House of Representatives for testimony and documents as the House moved toward impeaching Trump.

The president, who was acquitted after a Senate trial, was impeached for withholding congressionally approved military aid to Ukraine as he pressured that nation’s government to investigate Hunter Biden and Joe Biden, who at the time was a leading contender for the Democratic presidential nomination.

Goodwin Lawyer Fails Defending David Correia as He Heads to Jail For A Year and So Should the Partners at Goodwin Procter LLP

Correia’s lawyer, William Harrington of Goodwin Procter LLP had argued that his client should be spared prison time because he took less than $50,000 over seven years, what Harrington characterized as a small sum overall and far less than what Parnas is accused of pocketing.

The Unprecedented Greed Series: What do Rudy Giuliani, Ukraine, and Goodwin have In Common? Criminality.

NY Judge: Correia’s reliance on an out-of-circuit case, United States v. Hankins (5th Cir.), for the proposition that a client’s communication of documents to his attorney is a privileged communication is misplaced.

The Unprecedented Greed Series: Goodwin Eager to Represent Law Firm Guilty of Stealing Talent from Search Recruitment Consultancy

Lawyers at Freshfields decided to hijack the search recruiting consultancy (ESA) introduction of Attorney Klingsberg to unfairly deprive ESA of its fee. Unbeknownst to ESA, even though law firm Freshfields told ESA it was no longer interested in Attorney Klingsberg, Freshfields ended up hiring him.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

19-CR-725-3 (JPO) ORDER

PAUL OETKEN, District Judge:

On September 21, 2020, Defendant David Correia’s counsel filed a motion to withdraw and sought to file under seal the attached declarations explaining Correia’s non-payment as the reason for the motion. (Dkt. No. 121.) The Court rejected wholesale sealing of the declarations and directed Correia’s counsel to justify any proposed redactions to the declarations. (Dkt. No. 122.) After considering counsel’s justifications for sealing or redacting the declarations (see Dkt. No. 128),1 the Court orders counsel to promptly file the unredacted declarations on the public docket.

The public has a right of access — derived from both the common law and the First Amendment, see Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) — to many documents filed with the Court. There is a three-step process in analyzing the common law right of access. First, the document at issue must be a “judicial document,” i.e., a document that is “relevant to the performance of the judicial function and useful in the judicial process.” Id. at 119 (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (“Amodeo I”)). A court document is relevant to the performance of the judicial function “if it would reasonably

1 The Court also takes notice of the letter filed by Matthew Russell Lee advocating for public access to these declarations. (See Dkt. No. 126.)

have the tendency to influence a district court’s ruling on a motion or in the exercise of its supervisory powers . . . .” Brown v. Maxwell, 929 F.3d 41, 49 (2d Cir. 2019).

Second, if the document is a judicial document, a “common law presumption of access attaches,” at which point the Court must “determine the weight of that presumption.” Lugosch, 435 F.3d at 119.

The weight of the common law presumption is strongest for “matters that directly affect an adjudication,” id. (quoting United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) (“Amodeo II”)); filings associated with discovery disputes or motions in limine, where a court’s “authority is ancillary to [its] core role in adjudicating a case,” are entitled to a “somewhat lower” weight of presumption that still requires a court to “articulate specific and substantial reasons for sealing such material,” Maxwell, 929 F.3d at 50.

Third, and finally, the assigned weight of the common law presumption is to be balanced against any “countervailing factors,” Lugosch, 435 F.3d at 120, which can include financial privacy, see SEC v. Telegram Grp. Inc., No. 19-cv-9439, 2020 WL 3264264, at *5 (S.D.N.Y. June 17, 2020) (“A party’s interest in the confidentiality of its general financial records is a countervailing factor that can outweigh the public’s right of access.” (emphasis added) (citing Amodeo II, 71 F.3d at 1051)).

The common law presumption of access attaches to counsel’s declarations, and Correia’s asserted financial privacy interest does not overcome this presumption. Correia’s counsel argue that their declarations are not judicial documents, distinguishing the declarations from the “dispositive” nature of summary judgment and related papers at issue in Lugosch. (See Dkt. No. 128 at 1–2 (citing In re Bos. Herald, Inc., 321 F.3d 174, 180 (1st Cir. 2003).)

However, counsel’s declarations fit comfortably within the Second Circuit’s capacious definition of a judicial document: they are relevant to this Court’s decision whether to grant counsel’s motion to withdraw. See Maxwell, 929 F.3d at 49 (holding that a judicial document is one that “would

reasonably have the tendency to influence a district court’s ruling on a motion or in the exercise of its supervisory powers”).

The Court acknowledges that the declarations “are subject to a lesser — but still substantial — presumption of public access,” id. at 53, because they are related to the Court’s supervision or management of counsel, “authority . . . ancillary to the court’s core role in adjudicating a case[,]” and closer in nature to filings associated with discovery or in limine proceedings than to dispositive motions or trial documents, id. at 50.

Still, Correia’s “financial privacy” (Dkt. No. 128 at 2) is insufficient to overcome this moderate presumption of access.

While “[a] party’s interest in the confidentiality of its general financial records” is recognized as a countervailing factor, Telegram, 2020 WL 3264264, at *5, the declarations at issue are not genuinely financial records at all.2

Instead, the declarations — including the portions sought to be redacted — assert merely that Correia has not yet paid his attorneys and that Correia will likely qualify for appointed counsel.

Without more, such assertions do not amount to a “specific and substantial reason[]” to redact the declarations. See Maxwell, 929 F.3d at 50. The common law presumption of access, even if not at its apogee, outweighs Correia’s asserted privacy interest.

When holding that the common law presumption of access applies, a court is also to consider whether the First Amendment right of access applies, since the latter “impose[s] [a] higher constitutional burden in requiring disclosure.” Lugosch, 435 F.3d at 124.

The Second Circuit has recognized a qualified First Amendment right of access to a wide variety of judicial documents associated with criminal proceedings, including pretrial suppression hearings,

2 Even the First Circuit case cited by counsel stands for the proposition that “[p]ersonal financial information, such as one’s income or bank account balance, is universally presumed to be private, not public.” (See Dkt. No. 128 at 2 (emphasis added) (quoting Bos. Herald, 321 F.3d at 190).)

suppression motion papers, voir dire, and more. See United States v. Smith, 985 F. Supp. 2d 506, 517 (S.D.N.Y. 2013) (collecting cases).

The Court sees no reason why the declarations at issue depart from judicial documents associated with criminal pretrial proceedings as to which the Second Circuit has previously recognized the First Amendment right of access. Cf. United States v. Suarez, 880 F.2d 626, 631 (2d Cir. 1989) (“Because there is no persuasive reason to ignore the presumption of openness that applies to documents submitted in connection with a criminal proceeding, we conclude that the public has a qualified First Amendment right of access to the CJA forms after payment has been approved.”).

Since “the more stringent First Amendment framework applies, continued sealing of the documents may be justified only with specific, on-the-record findings that sealing is necessary to preserve higher values and only if the sealing order is narrowly tailored to achieve that aim.” Lugosch, 435 F.3d at 124.

Given that Correia’s asserted financial privacy interest is insufficient to overcome even a modest common law presumption of access, it follows that his stated justification for redactions does not overcome the stronger First Amendment presumption.

For the foregoing reasons, the declarations may not be sealed or redacted, because the common law and the First Amendment grant the public and press the right to view the declarations’ information. Accordingly, defense counsel’s request to seal or redact the attorney declarations is DENIED.

Counsel are directed to file the unredacted declarations on the public docket within five business days.

SO ORDERED.

J. Paul Oetken, US District Judge

Dated: November 12, 2020 New York, New York

MOTION TO WITHDRAW AS COUNSEL FOR DEFENDANT DAVID CORREIA

PLEASE TAKE NOTICE that, upon this Notice of Motion to Withdraw, William J. Harrington and Jeff Marcus, retained counsel for David Correia, move this Court before the Honorable J. Paul Oetken at the United States District Courthouse, 40 Foley Square, New York, New York 10007, at such a date and time as the Court may direct, for an Order granting counsels’ request to withdraw from the case.

The basis for the request is set forth in the attached declarations as required by Local Civil Rule 1.4 and Local Criminal Rule 1.1.

Counsel further request that this motion be accepted ex parte and filed under seal.

 

Dated: September 21, 2020 New York, NY

Respectfully submitted,

By: /s/ William J. Harrington William J. Harrington, Esq. Goodwin Procter, LLP

The New York Times Building 620 Eighth Avenue

New York, New York 10018 wharrington@goodwinlaw.com Telephone: (212) 813-8800

Facsimile: (212) 355-3333

Attorney for Defendant David Correia

 

Jeff Marcus, Esq. One Biscayne Tower
2 South Biscayne Blvd, Suite 1750
Miami, Florida 33131 jmarcus@mnrlawfirm.com
Telephone : (305) 400-4260 Admitted Pro Hac Vice

Attorney for Defendant David Correia

2

 

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

 

 UNITED STATES OF AMERICA,

 v.

 

DAVID CORREIA,

Defendant.

 

No. 19 Cr. 725 (JPO) TO BE FILED UNDER SEAL EX PARTE SUBMISSION

DECLARATION OF WILLIAM J. HARRINGTON, ESQ. IN SUPPORT OF A MOTION TO WITHDRAW AS COUNSEL

I, William J. Harrington, Esq., declare under penalty of perjury as follows:

1. I am counsel of record for David Correia in this matter.

2. I submit this declaration in connection with my application to withdraw as Mr. Corriea’s counsel. In compliance with Local Civil Rule 1.4 and Local Criminal Rule 1.1, I address the reason for my request, the case calendar in the matter, and the status of any lien.

3. I am moving to withdraw because Mr. Correia has not paid me for any of the legal work I have performed for him. Mr. Correia retained me around the time of his arrest.

Since that time, Mr. Correia and I have discussed fees on many occasions and he has expressed confidence that he would soon be in a position to pay for his legal representation.

As recently as September 19, 2020, Mr. Correia said that he hoped he could soon pay his fees. But he has not been able to do so. Based on my conversations with Mr. Correia, and his continued inability to raise funds, I believe that his finances will qualify him for appointed counsel.

4. Until last week, an important factor in my decision to give Mr. Correia more time to pay was the very limited scope of the prior charge against him. It alleged his participation in a single conspiracy that primarily involved a Cannabis business and a small number of Fall 2018 political contributions in Nevada.

5. The charges against Mr. Correia changed dramatically this past Thursday, September 17, 2020, when the Government filed a superseding indictment (the “S1 Indictment”) that vastly expands the scope and complexity of charges against Mr. Correia.

6. Count Seven of the S1 Indictment newly alleges that Mr. Correia engaged in a securities fraud scheme involving an insurance-product company, claiming that 7 victims were defrauded in excess of one million dollars over almost 7 years based on false statements about the finances of that company.

Ex Parte Submission

Declaration of William J. Harrington, Esq. United States v. David Correia, 19 Cr. 725 (JPO)

7. Counts Two and Three of the S1 Indictment further add charges that Correia made false statements and submitted falsified records to the FEC related to whether a different entity – a liquified natural gas company – was a bona fide business enterprise.

8. Given the breadth of the new allegations, this is now a much more extensive case than the one I had been retained to defend.

9. Regarding the case calendar, prior to the SI Indictment, the Court set a case Last week, the parties began discussing the need to request that the Court adjust that case schedule in light of the new charges, ongoing discovery, and the COVID pandemic.

a. Discovery. The Government has made voluminous production,sbut they are nonetheless In a teleconference on Friday, the Government indicated that it had a”fair bit” of additional discovery to make, including a “sizeable email production” that it anticipated making in 10 days.

b. Motions. The Court had previously set a pretrial motions deadline of October 5, 2020. The parties are discussing the motion schedule in light of the SI Indictment, and I anticipate a request to adjourn those dates. A trial date was also set for February 1, 2021. Though still almost five months away, there is a question as to whether this date will hold given current court procedures that severely limit jury trials in the district during the pandemic.

c. I informed the Government that I intended to file this withdrawal motion and that non­ payment is the basis of the I have not otherwise provided them with the details in this declaration and I respectfully request that the Court accept it ex parte and under seal.

9. My co-counsel, Jeff Marcus, and I spoke to Correia about this application after the filing of the Sl Indictment. In substance, he said that he had hoped to be able to pay us and still hopes that he will be in a position to do so, but that he does not expect us to work for free.

10. I state that I do not assert a retaining or charging lien.

I hereby declare under penalty of perjury that the foregoing is true and correct.

Signed on September 21 , 2020

DECLARATION OF JEFF MARCUS, ESQ. IN SUPPORT OF

MOTION TO WITHDRAW AS COUNSEL

I, Jeff Marcus, Esq., declare under penalty of perjury as follows:

1. I am an attorney and I represent David Correia in this matter.

2.  I submit this declaration in connection  with my application  to withdraw as counsel.. In compliance with Local Civil Rule 1.4 and Local Criminal  Rule 1.1, I address the reasons for this motion.

3. I was retained to represent Mr. Correia in August 2019 for what was thought to be an investigation in the Southern District of Florida.

The engagement was hourly and my discounted  hourly  rate for the engagement  was $6175/hr. As part of the engagement, Correia provided my firm with an initial retainer of $25,000.

4.  Since that initial retainer, Mr. Correia has not provided my firm with any additional payments for attorney’s fees.

5. On January 14, 2020, the Undersigned moved this Court via a pro hac motion to be co­ couns1el for Mr. Correia along with Mr. Willian1 Harrington, Esq. Before my formal appearance in this matter, Mr. Correia assured me that he would be able to pay my firm for its legal fees.

Since my appearance, Mr. Co1rreia consistently  has made similar representations of payment.   Unfortunately, to date, Mr. Correia has been unable to make any such payments.

Ex Parte Submission

Declaration of Jeff Marcus, Esq.

United States v. David Correia, 19 Cr. 725 (JPO)

6. Until the recently-returned Superseding Indictment, Mr. Correia faced a single campaign co11tribution cl1arge related to a state campaign contribution made in the State of The Superseding Indictment adds five new charges, including an unrelated investor fraud scheme spanning 2012-2019, and new campaign contribution  charges not related to the Nevada charge. The new charges will involve substantial preparation and time.

7. Given Correia’s inability to pay and the added scope and complexity of the government’s new charges, my firm, a small litigation boutique  based in South Florida, cannot continue to remain as co counsel without incurring substantial hardship.

8. Bill Harrington and I spoke with Mr. Correia in advance of filing this motion. Mr. Correia stated that he understood and that he did not expect our firms to work on an unpaid basis.  Based on my conversations with Mr. Correia, and his continued inability to raise funds, I believe that his finances will qualify him for appointed counsel.

9. My firm also will not assert any retaining or charging lien in the We also have told Mr. Correia that we will work with appointed counsel to ensure a smooth transition.

I hereby declare under penalty of perjury that the , foregoing is true and correct.

Signed on September 21, 2020

Jeff Marcus, Esq.

U.S. District Court
Southern District of New York (Foley Square)
CRIMINAL DOCKET FOR CASE #: 1:19-cr-00725-JPO-3

Case title: USA v. Parnas Date Filed: 10/09/2019

Assigned to: Judge J. Paul Oetken
Defendant (3)
David Correia
also known as
Sealed Defendant 3
represented by Jeffrey E Marcus
Marcus Neiman & Rashbaum, LLP
2 South Biscayne Blvd.
Suite 1750
Miami, FL 33131
305-400-4260
Email: jmarcus@mnrlawfirm.com
TERMINATED: 09/29/2020
LEAD ATTORNEY
Designation: RetainedWilliam Joseph Harrington
Goodwin Procter, LLP (NYC)
The New York Times Building
620 Eighth Avenue
New York, NY 10018-1405
(212)-813-8800
Fax: (212)-355-3333
Email: wharrington@goodwinlaw.com
ATTORNEY TO BE NOTICED
Designation: CJA Appointment
Pending Counts Disposition
18:1001.F STATEMENTS OR ENTRIES GENERALLY
(2s)
18:1519.F DESTRUCTION, ALTERATION OR FALSIFICATION OF RECORDS IN FEDERAL INVESTIGATIONS
(3s)
18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES
(4)
18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES
(4s)
52:30121 & 30109.F DISCLOSURE OF FEDERAL CAMPAIGN FUNDS (SOLICITATION OF A CONTRIBUTION OR DONATION BY A FOREIGN NATIONAL)
(5s)
18:1349.F ATTEMPT AND CONSPIRACY TO COMMIT WIRE FRAUD
(7s)
Highest Offense Level (Opening)
Felony
Terminated Counts Disposition
None
Highest Offense Level (Terminated)
None
Complaints Disposition
None

Plaintiff
USA represented by Douglas Samuel Zolkind
U.S. Attorney’s Office, SDNY (St Andw’s)
One St. Andrew’s Plaza
New York, NY 10007
(212) 637-2418
Email: douglas.zolkind@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDNicolas Tyler Landsman Roos
United States Attorney’s Office, SDNY
One Saint Andrew’s Plaza
New York, NY 10007
(212)-637-2421
Email: nicolas.roos@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Assistant US AttorneyRebekah Allen Donaleski
United States Attorney’s Office, SDNY
One Saint Andrew’s Plaza
New York, NY 10007
212-637-2423
Fax: 212-637-2443
Email: Rebekah.Donaleski@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Assistant US Attorney

 

Date Filed # Docket Text
11/13/2020 146 AFFIDAVIT of William Harrington and Jeff Marcus in Support as to David Correia re 123 MOTION for William J Harrington to Withdraw as Attorney and Jeff Marcus to Withdraw as Attorney.. (Harrington, William) (Entered: 11/13/2020)
11/12/2020 145 ORDER as to David Correia: The declarations may not be sealed or redacted, because the common law and the First Amendment grant the public and press the right to view the declarations’ information. Accordingly, defense counsel’s request to seal or redact the attorney declarations is DENIED. Counsel are directed to file the unredacted declarations on the public docket within five business days. (Signed by Judge J. Paul Oetken on 11/12/2020) (See ORDER set forth) (ap) (Entered: 11/12/2020)
11/05/2020 144 NOTICE OF FILING OF OFFICIAL TRANSCRIPT as to David Correia. Notice is hereby given that an official transcript of a Plea proceeding held on 10/29/20 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days…. (McGuirk, Kelly) (Entered: 11/05/2020)
11/05/2020 143 TRANSCRIPT of Proceedings as to David Correia re: Plea held on 10/29/20 before Judge J. Paul Oetken. Court Reporter/Transcriber: Paula Speer, (212) 805-0300, Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/27/2020. Redacted Transcript Deadline set for 12/7/2020. Release of Transcript Restriction set for 2/3/2021. (McGuirk, Kelly) (Entered: 11/05/2020)

U.S. District Court
Southern District of New York (Foley Square)
CRIMINAL DOCKET FOR CASE #: 1:19-cr-00725-JPO-4

Case title: USA v. Parnas Date Filed: 10/09/2019

Assigned to: Judge J. Paul Oetken
Defendant (4)
Andrey Kukushkin
also known as
Sealed Defendant 4
represented by Faith Alison Friedman
Gerald B. Lefcourt, P.C.
1776 Broadway
Suite 2000
New York, NY 10019
212-737-0400
Fax: 212-988-6192
Email: ffriedman@lefcourtlaw.com
ATTORNEY TO BE NOTICEDGerald B. Lefcourt
Gerald B. Lefcourt, P.C.
1776 Broadway
Suite 2000
New York, NY 10019
212-737-0400
Email: lefcourt@lefcourtlaw.com
ATTORNEY TO BE NOTICED
Pending Counts Disposition
18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES
(4)
18:371.F CONSPIRACY TO DEFRAUD THE UNITED STATES
(4s)
52:30121 & 30109.F DISCLOSURE OF FEDERAL CAMPAIGN FUNDS (MAKING OR AIDING AND ABETTING THE MAKING OF A CONTRIBUTION OR DONATION BY A FOREIGN NATIONAL)
(6s)
Highest Offense Level (Opening)
Felony
Terminated Counts Disposition
None
Highest Offense Level (Terminated)
None
Complaints Disposition
None

Plaintiff
USA represented by Douglas Samuel Zolkind
U.S. Attorney’s Office, SDNY (St Andw’s)
One St. Andrew’s Plaza
New York, NY 10007
(212) 637-2418
Email: douglas.zolkind@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDNicolas Tyler Landsman Roos
United States Attorney’s Office, SDNY
One Saint Andrew’s Plaza
New York, NY 10007
(212)-637-2421
Email: nicolas.roos@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Assistant US AttorneyRebekah Allen Donaleski
United States Attorney’s Office, SDNY
One Saint Andrew’s Plaza
New York, NY 10007
212-637-2423
Fax: 212-637-2443
Email: Rebekah.Donaleski@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Assistant US Attorney

There are proceedings for case 1:19-cr-00725-JPO.

David Correia’s Goodwin Lawyer William Harrington Fails In Attempts To Seal Documents
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