Case 1:15-cr-00867-RMB Document 369-2 Filed 12/05/17 Page 1 of 12 Til1ue Law Fnil.'m Fleming 1700 Broadway, 28 111 floor New York, NY 10019 (212) 706-1850 o 250 Moonachie Road, Suite 501 Moonachie, NJ 07074 (201) 518-7878 Fax (201) 518-7879 Cathy A. Fleming Direct Dial: 201-518-7907 cfleming@flemingruvoldt.com December 4, 2017 Honorable Richard M. Berman, U.S.D.J. Daniel Patrick Moynihan U.S. Courthouse 500 Pearl Street, Com1room 17B New York, New York 10007 Re: U.S.A. v. Reza Zanab, et al. U.S. District Com1 for the Southern District of New York S4 l 5-cr-00867 (RMB) Dear Judge Berman: The purpose of this letter is ( 1) to advise Your Honor of the Government's material and prejudicial breach of the Com1's Monday, November 28 Order that it produce all Brady material no later than that evening, thereby fu11her demonstrating its almost casual effo11s to comply with its Brady obligation, and (2) to apprise the Com1 of an additional late Saturday night example of the "better late than never" attitude that continues to characterize the Government's production of trial exhibits and discovery. A. Brady First, the Brady violation. In the Com1's November 28 Order ruling on the defendant's application for a two-week adjourmnent of the trial date, Your Honor directed the Government as follows: Second, I am asking the government or directing that all Brady material, all Brady material for the trial be served by this evening, say 6 or 7 o'clock this evening . . .. And again, all Brady material to be produced today. (Tr., November 28, 2017 at 8; see attached Ex. A). The Govermnent has failed to heed that direction. On Saturday, December 2, at 10:42 PM (see attached cover email, Ex. B), the Government produced five audio recordings, all in a foreign language, in which Reza Zarrab was a participant while incarcerated after his arrest in this case. Also produced is what appears to be a two-page English summary of these calls. (See Case 1:15-cr-00867-RMB Document 369-2 Filed 12/05/17 Page 2 of 12 December 4, 2017 Page 2 attached Ex. C). In one of them, dated September 15, 2016, Zarrab explicitly discusses the perceived need, when incarcerated in the United States, to lie "in order to get out or to get a reduced sentence ... " Thus, the summary continues, "you need to admit to crimes you haven't committed." Sh01ily thereafter, Zarrab repeats himself: " ... [I]n America in order to make it out of prison you need to admit to something you haven't committed." The import of these statements for Brady purposes is patent on their face. Zarrab is proclaiming his willingness to fabricate testimony out of whole cloth in order to obtain a reduced sentence. The belated production of these statements not only violates this Cami's November 28 Order, but also significantly impairs the ability of the defense to properly and effectively utilize them at trial. "Due process requires the disclosure of exculpatory and impeachment evidence material to guilt or innocence be made in sufficient time to permit the defendant to make effective use of that information at trial." Weathe1ford v. Bursey, 429 U.S. 545, 559 (1997). See also, United States v. Gil, 297 F.3d 93, 105 (2d. Cir. 2002) (Brady material -- a memorandum by a witness suppo1iing the defendant's defense -- buried in a box of 3500 material turned over the weekend before trial, did not constitute timely production); United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001 ). Failure to make such disclosure "violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). At this late date, the defense, without additional time, cannot effectively pursue the smmnary's additional reference to "Bahram's friends" who met with Zarrab' s lawyer and said "that they hated him and wished him to get sentenced for 30. years." We need first to determine who these people are and then investigate fi.nther. "Bahram's friends" would be an excellent source for possible additional items adversely impacting Zarrab' s credibility. The Government's violation of this Comt's November 28 Order has prejudiced Mr. Atilla's right to investigate facts highly material to his defense. Fmihermore, we have preliminarily determined that at least some of the belatedlydelivered phone calls in the five audio files are in Azeri, not Turkish. The translations received from the Government are summaries only. Our translators can understand some Azeri, but are not able to do full translations from that language. Thus, we cannot at this time immediately review all the audio files provided last night. B. Belated Discovery Production As another part of the Govermnent's Saturday production, but at 11 :57 PM (see Ex. B), the defense received a folder entitled "Additional & Revised Draft GX." Included therein were very large files, seemingly containing pictures of invoices and a large number of Excel spreadsheets and other materials. There are 749 files in the folder labeled "608" and at least 971 files in the folder labeled "609." One of these files may contain the entire contents of the email account for "sururi@royaltk.com.pst." Case 1:15-cr-00867-RMB Document 369-2 Filed 12/05/17 Page 3 of 12 December 4, 2017 Page 3 We are now reviewing this massive production. But the belated production, in itself, constitutes still another heavy burden on the defense to analyze and react to the Government's ongoing delivery of large quantities of materials during the trial. We are anxious to bring this serious lapse to the Comi' s attention as quickly as possible in the hope that the Comi will use this violation of its mandate to halt fmiher violations of Mr. Attila's rights. We also respectfully reserve our right to seek an appropriate remedy once we have completed our review of the production. Respectfully submitted, HERRICK, FEINSTEIN LLP FLEMING RUVOLDT PLLC By: By: /sNictor J. Rocco Victor J. Rocco Two Park Avenue New York, New York 10016 (212) 592-1400 ls/Cathy Fleming Cathy Fleming 1700 Broadway, 28 111 Floor New York, New York 10019 (212) 706-1850 McDERMOTT WILL & EMERY LLP LAW OFFICES OF JOSHUA L. DRATEL By: By: /s/ Todd Harrison Todd Harrison 340 Madison Avenue NewYork,NewYork 10173 (212) 547-5727 /s/ Joshua L. Dratel Joshua Dratel 29 Broadway, Suite 1412 New York, New York 10006 (212) 571-3792 Attorneys for Defendant Mehmet Hakan Atilla Attachments cc: All Counsel K, Case Document 369-2 Filed 12/05/17 Page 4 of 12 EXHIBIT A Case 1:15-cr-00867-RMB Document 369-2 Filed 12/05/17 Page 5 of 12 1 HBS3ATI1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 UNITED STATES OF Ai.'11ERICA, 4 v. 5 MEHi.V.tET HAKAN ATILLA, 6 7 S4 15 Cr. 867 RMB Defendant. ------------------------------x 8 9 November 28, 2017 8:45 a.m. 10 11 12 13 Before: HON. RICHARD M. BERMAN, 14 District Judge and a jury 15 16 17 18 19 20 21 APPEARANCES JOON H. KIM, United States Attorney for the Southern District of New York MICHAEL DENNIS LOCKARD, SIDHARDHA KAMARAJU, DAVID WILLIAM DENTON, JR., DEAN CONSTANTINE SOVOLOS, Assistant United States Attorneys 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:15-cr-00867-RMB Document 369-2 Filed 12/05/17 Page 6 of 12 2 HBS3ATI1 1 2 (APPEARANCES Continued) 3 4 5 6 7 8 9 10 HERRICK, FEINSTEIN LLP (NYC) Attorneys for defendant Atilla BY: VICTOR J. ROCCO, Esq. THOMAS ELLIOTT THORNHILL, Esq. - and FLEMING RUVOLDT, PLLC BY: CATHY ANN FLEMING, Esq. ROBERT J. FETTWEIS, Esq. - and LAW OFFICES OF JOSHUA L. DRATEL, P.C. BY: JOSHUA LEWIS DRATEL, Esq. Of counsel 11 12 13 14 Also Present: JENNIFER McREYNOLDS, Special Agent FBI MICHAEL CH..~~TG-FRIEDEN, Paralegal Specialist USAO MS. ASIYE KAY, Turkish Interpreter MS. SEYHAN SIRTALAN, Turkish Interpreter 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:15-cr-00867-RMB Document 369-2 Filed 12/05/17 Page 7 of 12 8 HBS3ATI1 1 for you in a couple of minutes. 2 highlights. 3 4 Just to give you some First of all, I'm not adjourning the trial date, and I'll explain why in detail in a couple of minutes. 5 Second, I am asking the government or directing that 6 all Brady ma_t erial, all Brady material for the trial be served 7 by this evening, say 6 or 7 o'clock this evening. 8 going to give you an accelerated advanced look at what's 9 upcoming. And I'm So, for example, by I think I say 6 in the order 10 this evening, 6 or 7, I want you to advise the defense of all 11 the witnesses for this week, and all exhibits for this week, 12 and then going forward on Fridays of each week, including this 13 week, to give them an advanced look for the week after. 14 there should be no surprise as to exhibits that are going to be 15 introduced or witnesses that are going to be called and 16 presented and who they are. 17 be produced today. 18 19 20 21 So, thanks. So And again, all Brady material to I'll call you back in a minute, we're typing up an order. MS. FLEMING: May I excuse myself for a few minutes to step outside? 22 THE COURT: 23 (Pause) 24 (Defendant present) 25 MR. KA...MlLR.AJU: Sure. Would your Honor like us to ask for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case Document 369-2 Filed 12/05/17 Page 8 of 12 EXHIBIT Case 1:15-cr-00867-RMB Document 369-2 Filed 12/05/17 Page 9 of 12 Robert Fettweis From: Sent: To: Cc: Subject: Chang-Frieden, Michael (USANYS) (Contractor) < Michael.Chang-Frieden@usdoj.gov> Saturday, December 2, 2017 11:57 PM Thornhill, Thomas; Cathy Fleming; Rocco, Victor, Jonathan Stern; Rosenfield, David; Robert Fettweis; Harrison, Todd; Evans, Joseph; jdratel@joshuadratel.com Lockard, Michael (USANYS); Kamaraju, Sidhardha (USANYS); Denton, David (USANYS); Sovolos, Dean (USANYS) RE: U.S. v. Mehmet Hakan Atilla - Additional 3500 Materials Counsel Please also find on USAfx a folder titled, "2017.12.02 Additional & Revised Draft GX," which is being produced under seal. Best, Michael From: Chang-Frieden, Michael (USANYS) (Contractor) Sent: Saturday, December 2, 2017 10:42 PM To: 'Thornhill, Thomas' ; 'Cathy A. Fleming Esq.' ; 'Rocco, Victor' ; 'jstern@flemingruvoldt.com' ; 'Rosenfield, David' ; 'rfettweis@flemingruvoldt.com' ; 'Harrison, Todd' ; 'Evans, Joseph' ; 'jdratel@joshuadratel.com' Cc: Lockard, Michael (USANYS) ; Sidhardha .Kamaraju (Sidhardha.Kamaraju@usdoj.gov) ; Denton, David (USANYS) ; Sovolos, Dean (USANYS) Subject: U.S. v. Mehmet Hakan Atilla - Additional 3500 Materials CounselPlease find on USAfx a folder titled, "2017 .12.02 Additional 3500 Materials," which a re subject to the 11/15/2017 protective order in this case. Best, Michael Chang-Frieden Paralegal Specialist United States Attorney's Office Southern District of New York, Criminal Division One St. Andrew's Plaza New York, NY 10007 Tel.: 212.637.2544 michael.chang-frieden@usdoi.gov 1 Case 1:15-cr-00867-RMB Document 369-2 Filed 12/05/17 Page 10 of 12 ! --·~ ·.. c··, ~ .. ···"' (_) EXHIBIT C Case 1:15-cr-00867-RMB Document 369-2 Filed 12/05/17 Page 11 of 12 RESTRICTED: DO NOT DISSEMINATE 10/21/2016 14:04:38 Reza talks to a male, ambassador wili do his best, they all do their best, Reza asks if the ambassador has rehtrnecl to US, ambassador will talk to officials here, Embassy will have only one hour, :tviosta:fo may not go there. 10/21/2016 10:24:5 1 Tomo1rnw is the last day, ambassador will renm1on1viondax, th~y-~hould to take me v,;ith him. he must say I came here to take him with me,/ ~;_...... "'- tb!i"hil~,. - ~.,,_ ·;.· 10/20/2016 14:54:44 . . Talks to mother. father and Sru..na