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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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United States of America,

) Criminal Action
) No. 17-CR-201
Plaintiff,
)
) ARRAIGNMENT AND
vs.
) MOTIONS HEARING
)
Paul J. Manafort, Jr.,
) Washington, DC
) Date: June 15, 2018
Defendant.
) Time: 10:00 a.m.
)
___________________________________________________________

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TRANSCRIPT OF ARRAIGNMENT AND MOTIONS HEARING
HELD BEFORE
THE HONORABLE JUDGE AMY BERMAN JACKSON
UNITED STATES DISTRICT JUDGE
____________________________________________________________

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A P P E A R A N C E S

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For the Plaintiff:

ANDREW WEISSMANN
GREG D. ANDRES
SCOTT MEISLER
U.S. Department of Justice
Special Counsel's office
950 Pennsylvania Avenue NW
Washington, D.C. 20530
202-514-1746
Email: Aaw@usdoj.gov
Email: Gda@usdoj.gov
Email: Sacm@usdoj.gov

For Defendant:

KEVIN M. DOWNING
Law Office of Kevin M. Downing
815 Connecticut Avenue, N.W.
Suite 730
Washington, D.C. 20006
(202) 754-1992
Email: Kevindowning@kdowninglaw.com
THOMAS EDWARD ZEHNLE
Law Office of Thomas E. Zehnle
601 New Jersey Avenue, NW
Suite 620
Washington, DC 20001
(202) 368-4668
Email: Tzehnle@milchev.com

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RICHARD WILLIAM WESTLING
Epstein Becker & Green, P.C.
1227 25th Street, NW
Suite 700
Washington, DC 20037
(202) 861-1868
Email: Rwestling@ebglaw.com

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ALSO PRESENT:
Takeysha Robinson, Pretrial Officer

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Omer Meisel, Special Agent
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Court Reporter:

Janice E. Dickman, RMR, CRR
Official Court Reporter
United States Courthouse, Room 6523
333 Constitution Avenue, NW
Washington, DC 20001
202-354-3267

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THE COURTROOM DEPUTY:

Your Honor, this morning we

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have criminal case number 17-201-1, the United States of

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America v. Paul J. Manafort, Jr.

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the courtroom.

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Mr. Manafort is present in

Will counsel for parties please approach the lectern,
identify yourself for the record.

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MR. ANDRES:

Good morning, Your Honor.

Greg Andres,

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Andrew Weissmann, Scott Meisler, Brian Richardson, and

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special -- Supervisory Special Agent Omer Meisel.

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THE COURT:

Good morning.

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MR. WESTLING:

Good morning, Your Honor.

Richard

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Westling, Kevin Downing, and Tom Zehnle on behalf of Mr.

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Manafort.

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THE COURT:

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THE COURTROOM DEPUTY:

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All right.

Good morning.
Your Honor, the pretrial

officer present for these proceedings is Ms. Robinson.

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THE COURT:

All right.

We're here on two pending

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motions this morning:

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reconsideration of his conditions of release; docket 315, the

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government's motion to revoke his current order of pretrial

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release.

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We also need to arraign him on the superseding

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indictment.

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matter first.

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Docket 229, defendant's motion for

And so I think we ought to take care of that

Mr. Westling, or whoever is coming -- Mr. Downing and

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Mr. Manafort can come to the lectern, please.

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MR. DOWNING:

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THE COURT:

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THE COURTROOM DEPUTY:

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THE DEFENDANT:

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THE COURTROOM DEPUTY:

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Good morning, Your Honor.

Good morning.
Are you Paul J. Manafort, Jr.?

I am.
Are you the person named in

the superseding indictment?

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THE DEFENDANT:

I am.

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THE COURTROOM DEPUTY:

Your Honor, may the record

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reflect that both counsel and the defendant have received a

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copy of the superseding indictment which has been filed in this

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case.

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Mr. Manafort, you are charged in criminal case No.

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17-201-1 in a seven-count superseding indictment charging you

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with the following:

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and 3551, conspiracy against the United States.

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18 United States Code § 1956(h) and 3551, et seq., conspiracy

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to launder money.

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Count No. 1, 18 United States Code §§ 371
Count 2,

Count No 3, 22 United States Code §§ 612 and

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618(a)(1), 18 United States Code §§ 2 and 3551, et seq.,

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unregistered agent of a foreign principal.

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United States Code §§ 612 and 618(a)(2), 18 United States Code

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§§ 2 and 3551 et seq., false and misleading FARA statements.

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Count No. 4, 22

Count No. 5, 18 United States Code §§ 2, 1001(a) and
3551, et seq., false statements.

Count 6, 18 United States

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Code §§ 2, 1512(b)(1), and 3551 et seq., obstruction of

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justice.

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and 3551, et seq., conspiracy to obstruct justice.

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And Count No. 7, 18 United States Codes §§ 1512(K)

Do you waive formal reading of the superseding
indictment?

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THE DEFENDANT:

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MR. DOWNING:

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THE COURT:

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We do.

For purposes of the arraignment, how do

you plead to the superseding indictment?

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THE DEFENDANT:

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THE COURT:

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MR. DOWNING:

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THE COURT:

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I do.

Not guilty.

All right.

You can be seated.

Thank you.

I want to go through a little bit the

procedural history that bought us to this point today.
On October 30th, 2017 Mr. Manafort was arrested.

He

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appeared before a magistrate judge in this court and was placed

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on a high intensity supervision program, home detention with

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GPS monitoring and an unsecured $10 million appearance bond.

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He was permitted to leave his home only to meet counsel, attend

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religious services or doctors' appointments and was required to

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report to the pretrial services agency.

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A condition of his release, which was printed in

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bold, all in caps on the document he signed, said you are not

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to commit any criminal offense.

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sought relief from those conditions and he appeared before me

And defendant immediately

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on November 6, 2017.

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I found that his mere release on personal

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recognizance with an unsecured appearance bond and without GPS

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monitoring would not reasonably assure the appearance of the

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defendant and that additional conditions were needed.

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But I also found at that time that house arrest was

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not the least restrictive condition that would accomplish those

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goals and I was prepared to modify the terms of his release.

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So, I held, on November 6th, in order to be relieved of the

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condition of home confinement he had to supply either a

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security, property with sufficient unencumbered value to cover

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the bond under § 3142(c)(1)(B)(xi) of the Bail Reform Act, or

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he could identify a surety, a person with a net worth of

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sufficient unencumbered value to pay the amount of the bail

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bond under subsection (xii).

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combination as a substitute for the $10 million unsecured

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appearance bond.

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necessary proposal or financial information.

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Or, I said there could be some

But by that point I hadn't received the

Since then I've made repeated efforts to facilitate

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the easing of the current restrictions and the defense has

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spent the last six months in fits and starts trying to put a

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package together.

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in this case -- with, I remind everyone, the consent of all the

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parties -- a media communication order.

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Meanwhile, on November 8th, 2017, I issued

On November 30th, 2017, the defendant submitted a

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more specific bond proposal that was largely acceptable to the

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Office of Special Counsel.

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Counsel brought to my attention its concern about a violation

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of the media communication order involving communications with

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a Russian national in Kiev regarding publication of a favorable

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op-ed piece that the defendant had edited himself in Kiev.

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But then the Office of Special

And so I held a hearing on December 11th and at that

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time I found that maybe it wasn't entirely clear to the

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defendant that that was covered by the media communication

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order.

But I said I want all the defendants and all the

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parties to understand that I'm likely to view similar conduct

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in the future to be an effort to circumvent and evade the

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requirements of my order as they've been clarified this

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morning.

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I was provided with, like all facts, in connection with my

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consideration of the bond issue.

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And I do believe it's fair to consider the facts that

And then, on December 15th, I granted the defendant's

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first bond proposal, which had provided the combination of

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security and a surety.

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he couldn't rely on the assets of his surety if those assets

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were joint.

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surety's name.

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defendant was no longer interested.

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I included the logical condition that

And I said, Well, they have to be put in the
And that was the end of that proposal; the

There were subsequent efforts to propose appropriate
security.

I raised questions because the defendant proposed to

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pledge to me property that was already pledged to a bank to

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secure the mortgage on another property.

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oh, that's not a problem, the bank is only going to take that

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property last, if the sale of the mortgaged property doesn't

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cover the loan.

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that were supposed to reflect that, but none of them did.

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I was told in court,

And he submitted a stack of documents to me

So I rejected that effort, but I made one more effort

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to make it crystal clear, and on April 9th, 2018 I issued an

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order setting out exactly which properties I would accept and

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what the conditions needed to be for the sureties.

Which

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brings us to the current motion filed on May 10th.

But it

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identified different properties and different sureties than

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what had been listed in my order.

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largely satisfied; it proposed a few tweaks, the defendant was

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willing to make them.

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However, the government was

But then the Office of Special Counsel came in and

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said, Wait, Judge, there's something we want to tell you, and

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they submitted a sealed pleading letting me know what it would

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be, but asked to have until June 4th to file a response to the

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bond motion.

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defendant's bond and placed their concerns on the public

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record, attaching affidavit and exhibits.

On June 4th they filed a motion to revoke the

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Thereafter, given my ongoing concern about making as

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much of this case public as possible, I took pains to have the

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prior pleading unsealed.

The Office of Special Counsel said

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that's fine, but we need certain limited redactions, and I

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agreed to that.

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And, so, I need to digress a minute to discuss here

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what happened on Wednesday.

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unsealed with redactions.

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workings of the clerk's office, unredacted versions of exhibits

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were posted on the docket instead.

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corrected in approximately 17 minutes.

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The filing was ordered to be made

Due to an error in the internal

This error was caught and

I do not fault the members of the press who are

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present for reporting the content of what appeared in their

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in-boxes, even though it was probably apparent that the

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documents were supposed to be redacted.

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publication of the completely unsupported speculation that this

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revelation was an intentional leak by the Office of Special

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Counsel.

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But, I do question the

No reporter had any facts to base that on, so I'm not

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sure why anyone printed it.

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anyone has failed to correct those assertions, I want to state

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for the record that no one in this courtroom and no one working

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for either party had any responsibility for the error.

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a court error for which the Court apologizes.

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It's not responsible.

And in case

It was

Returning to the motions at issue, I want to say that

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I've read the pleadings and all of the exhibits.

The Office of

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Special Counsel has indicated its desire to proceed on the

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record it submitted.

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The defense, do you have any witnesses that you
intend to call?

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MR. WESTLING:

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THE COURT:

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We don't, Your Honor.

All right.

I do want to lay out then

what's already in the record before I hear argument.
I note that not only did the government bring certain

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facts to my attention in connection with its opposition to the

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bond motion and then its own motion, but on June 8th, 2018 a

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superseding indictment was returned.

So that means there's

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already been a determination made by the grand jury that there

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is probable cause to believe that this defendant violated

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18 U.S. Code § 1512(b)(1), tampering with a witness.

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alleges conspiracy with another individual to do so as well.

And it

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So what does the witness tampering statute say?

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18 U.S. Code § 1512(b) says:

Whoever knowingly uses

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intimidation, threats, or corruptly persuades another person,

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or attempts to do so, or engages in misleading conduct towards

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another person with the intent to influence the testimony of

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any person in an official proceeding has committed a felony.

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It also says that whoever conspires to commit any offense under

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this section is subject to the same penalties.

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So, what evidence has been presented on that issue?

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Again, I think it's helpful to review the facts and the

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circumstances chronologically.

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On February 23rd, 2018 the last superseding

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indictment was presented in this court.

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first time, new charges arising out of the allegations that the

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defendant served as an unregistered agent to lobby U.S.

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officials on behalf of a foreign government and foreign

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political parties.

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leadership of the Ukraine and its president, and later former

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president, Victor Yanukovych.

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It included, for the

In particular, the Russia-backed political

In particular, the new allegations said that as a
part of that ongoing effort defendant engaged other firms to

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lobby on their behalf and secretly retained a group of former

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senior European politicians, the Hapsburg Group, to take

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positions favorable to the Ukraine, ostensibly independently,

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but in fact as paid lobbyists, and that some of this lobbying

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took place not just in Europe, but in the United States.

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I note that as of today these are still simply

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allegations.

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were first made public on February 23rd.

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Well, on the very next day, it is alleged, that Mr. Manafort,

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on February 24th, at 3:51 p.m., called a principal of the

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public relations company that was the intermediary for the

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Hapsburg Group, Company D.

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going to refer to as D1, who was the principal of that company,

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on that person's cell phone.

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24 seconds.

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There will be a trial.

But those allegations
What happened next?

And he called a person who we're

The call lasted for a minute and

We don't know what they said.

Later, it's alleged -- and these are all documents

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attached to the FBI declaration -- that on February 24th, again

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the day after the indictment, 3:53 p.m., Mr. Manafort texted D1

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using his WhatsApp encrypted app, saying, This is Paul.

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Again on February 24th he used his phone, not

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encrypted, to contact D1, identified himself and stated that he

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wanted to give D1 a heads-up about Hapsburg.

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ended the call.

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D1 immediately

There are documents that are provided that on the
next day, February 25th, Mr. Manafort attempted to call D1

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using his phone, but the phone call did not go through.

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next day, February 26th, Mr. Manafort sent a message to D1

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which attached an article from businessinsider.com that

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described issues going on with the former European leaders, and

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it stated two European politicians were secretly paid around

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€2 million by Manafort in order to take positions favorable to

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the Ukraine, including by lobbying in the United States.

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So that article was sent by Mr. Manafort to person D1

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at 11:56 p.m.

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encrypted text to D1 that said, We should talk.

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clear that they worked in Europe.

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The

At 11:57 p.m. on February 26th he sent an
I have made

The next day, February 27th, 2018, Mr. Manafort

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attempted to call person D1 using the encrypted WhatsApp app.

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February 27th, the same day, about a half an hour later, he

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attempted to call D1 using the phone which was not encrypted,

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but the phone call did not go through.

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There's also an allegation in the affidavit provided

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by the special agent who has averred that D1 has stated that he

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interpreted this conduct -- contact as an effort to suborn

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perjury.

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On February 28th, 2018 Person A, who has now been

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named in the superseding indictment as Konstantin Kilimnik,

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attempted to contact Person D2, another principal of the media

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firm involved as an intermediary with the Hapsburg Group,

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through WhatsApp.

It's alleged in this superseding indictment

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that Mr. Kilimnik worked for Davis Manafort International in

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Kiev.

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On February 28th, at 1:49 a.m., there's an encrypted

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message from Person A to Person D2:

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you're doing fine.

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encrypted:

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what's going on.

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Hi, how are you?

I hope

Thereafter, 1:51 a.m., a second message,

My friend P is trying to reach D1 to brief him on

1:51 a.m., a third encrypted message:

If you have a

chance to mention this to Person D1, it would be great.
Fourth message, same time, another minute later:

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Basically, P wants to give him a quick summary that he says to

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everybody -- parens, which is true, close parens -- that our

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friends never lobbied in the U.S., and the purpose of the

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program was EU.

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February 28th, Person A switches to Telegram, a
different encrypted messaging application to D2 and sends five

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similar messages to D2, which, according to the government's

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exhibits, stated the following, at 6:01 a.m. to D2:

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are you?

Hey, how

This is Person A.

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6:01 a.m.:

Hope you are doing fine.

Another one at

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6:01 a.m.:

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what's going on.

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summary that he says to everybody, which is true, that our

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friends never lobbied in the U.S. and the purpose of the

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program was the EU.

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My friend P is trying to reach D1 to brief him on
6:02:

6:03 a.m.:

Basically, P wants to give him a quick

If you have a chance to mention this to

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Person D1, it would be great.

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connected to discuss in person.

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It would be good to get them
P is his friend.

Now, I note that the defense has emphasized in its

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submissions to me that Mr. Manafort at this time was not under

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a court order by me not to communicate with witnesses.

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that is true.

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is that on March 9th, 2018, docket 25 on the docket of the

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matter pending in the Eastern District of Virginia, an order

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was entered that the defendant, quote, must avoid all contact,

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directly or indirectly with the person, with any person who is

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a victim or witness in the investigation or prosecution of the

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defendant.

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And

But the next thing that happened chronologically

That was on March 9th, 2018.
April 4th, 2018, Person A, one month later, texted D2

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using two different encrypted messaging applications, and he

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texts him three times.

April 4th at 8:53 a.m., Person A to

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Person D2 using WhatsApp:

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asked me again to help connect him with person D1.

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help?

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Hey, this is Person A.

8:45, Person A to Person D2:

My friend P
Can you

Hey, my friend P has

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asked me again if there's any way to help connect him to Person

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D1.

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Telegram this time:

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And then at 1 p.m. on April 4th Person A texts, the last text

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that I've been informed about:

April 4th, 2018, 8:54 a.m., Person A to Person D2, using
I tried him, Person D1, on all numbers.

Hi, this is Person A's first

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initial, my friend P is looking for ways to connect to you to

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pass you several messages.

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Can we arrange that?

Now, I don't have any jurisdiction to sanction an

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alleged violation of Judge Ellis's order, it's up to him.

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the fact of the existence of the order is another factor that I

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can consider when I'm thinking about the likelihood of

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compliance with any orders that I issue.

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But

Now, the defense disputes the government's

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characterization of the contacts which I've just described.

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First it of all, it says he didn't know when he contacted the

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people he hadn't talked to in years, the day after the new

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charges were handed down, that D1 and D2 were witnesses.

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More fundamentally, he argues that he wasn't

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advancing a false story; the Hapsburg Group work was about

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Europe and not about the United States.

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document which is docketed at docket 319-1, a memo for the

And he provides a

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kickoff meeting on July 12th, 2012 that confirms the intention

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of the members of the group to be remunerated, but only EU work

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is described.

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The government has supplied its own exhibits.

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Attached to its motion were certain communications with the

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communications firm where D1 and D2 were employed, that

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referenced outreach in both Europe and the United States.

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Exhibit B, docket 315-5, a memo from D1 about the Hapsburg

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Group, is largely European focused, although other documents

But

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related to planned meetings between one or more Hapsburg Group

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members and the U.S. Congress were provided.

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And in its reply, the government provided me with an

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exhibit -- two exhibits; docket 322-1 is a memo from D2 to D1

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describing just such a meeting in the United States with a

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congressman, and docket 322-2 is a memorandum from the

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defendant himself to President VFY, it's a quarterly report,

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and it describes the strategy in the first quarter of 2013 to

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heavily engage with the U.S. government -- it says USG and the

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U.S. Congress.

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It includes a self-congratulatory account of the work

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done to organize and leverage the visits of the Hapsburg Group

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member to make critical inroads in how U.S. policymakers view

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the Ukraine.

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that were placed in United States publications as part of,

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quote, our immediate outreach and strategy, close quote.

And it mentions op-eds by Hapsburg Group members

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So, both sides have pointed me to documents that they

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can draw upon.

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the overwhelming majority of these contacts that make up the

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Office of Special Counsel's motion didn't actually establish

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contact.

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the few that did get through, most said little.

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contact D.

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substance that mention the issue of whether the Hapsburg

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Group's work was in Europe versus the United States.

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The defendant also underscores the fact that

A lot of them are unanswered calls and texts.

Have you contacted D?

And of

P is trying to

There are only three of

Also, the defendant points out that most of the

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contacts were by Person A and not by Mr. Manafort.

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the defendant questions the Office of Special Counsel's ability

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to make out the elements of its offense.

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amount of indignation it suggests that it was improper for the

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prosecutors to bring this to my attention in the first place.

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Therefore,

And with a fair

Now, the original motion put the question of whether

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there was probable cause to believe the defendant had committed

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a crime before me to decide.

But the superseding indictment

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has altered that situation.

A probable cause finding has been

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made.

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myself to state now, for purposes of § 3148 of the Bail Reform

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Act, that there has been a finding of probable cause to believe

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that this defendant committed a felony offense while he was on

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pretrial release in this case.

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And, therefore, I don't need to weigh the evidence

Now, as I just noted, the defendant has raised a

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number of issues concerning the quality of the government's

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proof.

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And I was prepared, when this issue was in front of me, to

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address some of those issues in connection with the pending

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motion today.

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into any assessment of the strengths or the deficiencies of the

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evidence that's been presented.

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upon to decide this matter very soon in this courtroom, and I'm

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not going to be the fact-finder.

It says the Office of Special Counsel's case is thin.

But given the indictment, I'm not going to get

A jury is going to be called

And so they should be able to

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do that based on the entire record, without having read a

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public account of my views on the matter based on what I've

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read here.

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So that means the only question for me to resolve is:

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What action should be taken in connection with the defendant's

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bond under these circumstances?

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every occasion when bond came up, that it's important to start

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with what the statute says.

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And I think, as I have on

18 U.S. Code § 3148, sanctions for a violation of a

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release condition, provide that a person who's been released

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and who has violated a condition of his release is subject to a

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revocation, an order of detention, and prosecution for contempt

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of court.

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initiate a proceeding for revocation of an order of release by

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filing a motion with the district court.

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Paragraph B says the attorney for the government may

To the extent practicable, a person charged with

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violating a condition of release, that he not commit a federal,

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state, or local crime, shall be brought before the judicial

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officer who ordered the release and whose order is alleged to

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have been violated.

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The judicial officer shall enter an order of

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revocation and detention if, after a hearing, the judicial

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officer finds probable cause to believe that the person has

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committed a federal, state, or local crime while on release,

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which I have.

Or, clear and convincing evidence that the

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person has violated any other condition of release.

That has

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not been put before me; it's not my condition of release that's

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in issue, other than the commission of a crime.

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But I still have to also make other findings; that

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there is no condition or combination of conditions that will

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assure that the person will not flee or pose a danger to the

16

safety of any other person or the community.

17

person is unlikely to abide by any condition or combination of

18

conditions of release.

19

believe that while on release the person committed a federal,

20

state, or local felony, the law says a rebuttable presumption

21

arises that no condition or combination of conditions will

22

assure that the person will not pose a danger to the safety of

23

any other person or the community.

24
25

Or, that the

If, as here, there is probable cause to

And then the statute goes on, and it says if the
judicial officer finds that there are conditions of release

 20
1

that will assure the person will not flee and pose a danger to

2

the safety of any other person or of the community, and that

3

the person will abide by those conditions, then the judicial

4

officer shall treat the person in accordance with the

5

provisions of § 3142 of this title.

6

Well, what does that mean?

That means that I have to

7

treat him the same way I would have had to treat him at the

8

beginning of these proceedings.

9

Probable cause to believe that he committed a felony offense

So, here, what do we have?

10

and the rebuttable presumption has arisen under § 3148(b.) And

11

this is true even if the felony is a non-violent felony.

12

statute does not differentiate.

13

The

There's not much authority about what I'm supposed to

14

think about that in this circuit, but in United States versus

15

Bartok, the Second Circuit, 472 Fed.Appx. 25, stated it upheld

16

the district court's order of a bond revocation based on the

17

defendant's commission of perjury, saying the law plainly

18

states that the rebuttable presumption may be triggered by a

19

probable case finding as to a defendant's commission of any

20

felony, regardless of whether the felony itself involves

21

violence, threats, or any indicia of dangerousness.

22

States versus LaFontaine, 210 F.3d 125, involved perjury and

23

witness tampering.

24
25

United

Within this district, in United States versus
McDonald, 238 F.Supp.2d 182, the court held that defendants

 21
1

involved in a long-term drug dealing operation should be

2

detained pending trial, even though drug dealing does not

3

necessarily impose physical danger to the community.

4

think the case is entirely apposite here, but the court did

5

say, for the purposes of the Bail Reform Act, dangerous doesn't

6

mean violent.

7

concern about safety be given a broader construction than

8

merely danger of harm involving physical violence.

9

I don't

The Committee on the Judiciary intends that the

Similarly, in United States versus McKethan, 602

10

F.Supp. 719, the court in this district revoked defendant's

11

bond based on the rebuttable presumption when he was arrested

12

for possession of heroin, a nonviolent crime, while on pretrial

13

release.

14
15

Thus, I find under 18 U.S. Code § 3148 the
presumption has been triggered.

16

What does that mean?

The burden shifts to the

17

defendant to come forward with some evidence to rebut it.

18

There's no D.C. Circuit case specifically on how that plays

19

out.

20

presentence position in § 3148 is similar to the one in

21

§ 3142(e), which applies at the beginning of the bond

22

determination, and it's been held that it should be applied the

23

same way.

24
25

But other circuits have found that the rebuttable

That was United States versus Cook, 880 F.2d 1158.
So how does it work at the time of the initial bond

determination under § 3142(e)?

Once a rebuttable presumption

 22
1

has been triggered, the presumption operates, at a minimum, to

2

impose a burden of production on the defendant to offer some

3

credible evidence contrary to the statutory presumption.

4

That's United States versus Alatishe, 768 F.2d 364, out of the

5

D.C. Circuit.

6

Other circuits, the Second Circuit, in United States

7

versus Rodriguez, 950 F.2nd 85, underscored that a defendant

8

must introduce some evidence contrary to the presumed fact in

9

order to rebut the presumption.

10

But, courts have also said while the production --

11

burden of production may not be heavy, all the applicable cases

12

speak in terms of a defendant's obligation to introduce

13

evidence.

14

from the Tenth Circuit.

That's United States versus Stricklin, 932 F.2d 1353

15

As the court in this district explained in United

16

States versus Ali, even if the defendant offers evidence to

17

counter the presumption, the presumption just doesn't

18

disappear.

19

considered after the defendant has produced credible evidence.

20

The presumption still remains a factor to be

And the Sixth Circuit said, in United States versus

21

Stone, 608 F.3d 939, even when a defendant satisfies his burden

22

of production, the presumption favoring detention does not

23

disappear entirely, but remains a factor to be considered among

24

those weighed by the district court.

25

But in the end, while the presumption operates to

 23
1

shift the burden of production, it does not alter the

2

government's burden of persuasion under the statute, which is

3

consistent with the presumption of innocence, which still

4

applies in this case.

5

whether the presumption applies, the government's ultimate

6

burden is to prove that no conditions of release can assure

7

that the defendant will appear and will assure the safety of

8

the community.

9

As the Stone court said, regardless of

So, while what the defendant presented to me was

10

largely argument, he did supply some exhibits.

11

given the low threshold here, that he has come forward with

12

some evidence to rebut the presumption.

13

So I find,

With that background, I want to give the parties an

14

opportunity to argue.

15

pleadings.

16

probable cause, I've made that finding.

17

argument on the question of whether the presumption has been

18

triggered or whether it's been rebutted, I've made those

19

findings.

20

I think you know that I've read your

I don't need to hear argument on the question of
I don't need to hear

But, I have simultaneous requests pending before me

21

to loosen the conditions of bond or to revoke it altogether.

22

And so I do want to hear from both the government and the

23

defendant on what is needed to protect the safety of the

24

community.

25

How has that changed in light of this information?
Also, I want to underscore that the Bail Reform Act

 24
1

says that even if I find that there are conditions of release

2

that could assure that the person will not flee and pose a

3

danger, I have to find that he will abide by those conditions.

4

So I want to hear from both sides on whether and how

5
6

I can be assured of that.
MR. ANDRES:

And I'll start with the government.

Thank you, Judge.

Judge, I just wanted

7

to start by addressing one fact that you mentioned with respect

8

to one of the initial phone calls, I believe it was the second

9

phone call that lasted over a minute.

It's the second one in

10

the Government Exhibit N, which is the chart.

11

Honor said we didn't know what was said on that call.

12

a reference, in paragraph 14, on page 6 of Special Agent

13

Domin's declaration.

14

said he wanted to speak to D1.

15

I think Your
There is

Very briefly, that says that Mr. Manafort

Subsequent to the provision of that affidavit, we've

16

spoken to counsel for D1 and he's provided us with a proffer of

17

what was said more specifically with that call.

18

like to proffer that information, because we do have more

19

information about specifically what was said.

20

So I would

At the time of that call, Manafort's call to D1 on

21

February 24th, 2018, D1 was in a car on a rural road in Italy,

22

his wife was driving.

23

called him on his Italian cell phone.

24

caller's number when he received calls from the U.S., but

25

Manafort's number did not display on D1's phone.

D1 was confident that Manafort had
D1 usually saw the

D1 did not

 25
1

use speaker phone for this telephone call.

2

Manafort said:

This is Paul, Paul Manafort.
D1 responded, Hello, Paul.

I need

3

to give you a heads-up.

4

said, I need to give you a heads-up about Hapsburg.

5

time D1 turned down the radio so he could hear the call more

6

clearly.

7

Hapsburg?

It's important that we talk.

8

Hapsburg.

D1 responded:

9

continued:

Manafort continued:

Manafort
At this

Have you seen any articles about
I have an update about

I can't talk right now.

Manafort

I need to give you a heads-up about Hapsburg.

10

this point D1 hung up the phone while Manafort was still

11

talking.

D1 wanted to get off the phone quickly.

12
13

At

So we do have information about what was said on that
phone call.

14

Judge, the government takes the position that there

15

are no conditions upon which -- will satisfy the community or

16

rebut the presumption that Mr. Manafort is a -- is a danger to

17

the community.

18

Manafort hasn't provided any conditions, much less any

19

combination of conditions that would mitigate his danger to the

20

community.

21

And I would note, at the outset, that Mr.

In his reply brief -- or, in his response, I should

22

say, Mr. Manafort both didn't address the presumption and

23

didn't add anything about any conditions, but, rather,

24

advocated for the imposition of the bail package, which is

25

intended to address the risk of flight.

 26
1

These are not random outreaches to these witnesses D1

2

and D2.

3

potential or prospective witnesses.

4

that it's an effort to hinder a trial witness or a witness

5

that's been identified by the government.

6

who may give testimony.

7

respect.

8

And Mr. Manafort certainly knew that these were
Section 1512 doesn't say

It says any person

And the statute is broad in that

These were not just a mere number of texts.

This was

9

a sustained campaign over a five-week period to use multiple

10

phone numbers, applications and people to reach D1 and D2 to

11

influence their testimony.

12

defendant was on bail.

13

Obstruction of justice while the

Generally, obstruction of justice is one of the

14

crimes for which courts consider in the Bail -- prior to the

15

Bail Reform Act considered pretrial detention.

16

case where Mr. Manafort was taking these actions over a

17

five-week period while he's on bail, aware of the conditions of

18

his bail release.

19

someplace in Virginia or Washington, is reaching out 4,000

20

miles away to influence a witness in Italy on one occasion with

21

respect to D1.

22

This case is a

Mr. Manafort, from his apartment or

With respect to D2, he's reaching out to Mr.

23

Kilimnik, who's in Russia, who then reaches out to another

24

individual who's also in Europe.

25

be any condition, any condition that would keep him from

The notion that there could

 27
1

continuing to do that or to restrict his ability or protect the

2

community and witnesses in this case and rebut the danger, I

3

don't think exists, Judge.

4

There is certainly the possibility that you could

5

consider taking away his phone or his internet.

But courts

6

have repeatedly said that constructing what is, in effect, a

7

private prison doesn't necessarily ensure that there are

8

conditions, because those conditions have to be complied with

9

and ensured.

And there's nothing on the record that suggests

10

that this Court can have any confidence that Mr. Manafort will

11

abide by those conditions, if not for the fact that he's

12

already violated them.

13

And the number of different ways in which Mr.

14

Manafort can continue at this activity -- you could take away

15

his phone and somebody else could come in his apartment, or he

16

could use his wife's phone, or he could get another phone.

17

It's simply not practical to impose conditions that will

18

contain this type of evidence [sic].

19

To the extent, Judge, that we're now relying on the

20

factors with respect to bail; that is, the circumstances -- the

21

nature and circumstances of the charge, the weight of the

22

evidence, a danger to the community, and the like, Mr. Manafort

23

is now facing a substantial sentence in this case.

24

multiple counts of more than -- that have a statutory maximum

25

of 20 years imprisonment.

There are

His guidelines, I believe, are

 28
1

somewhere in the neighborhood of 168 months.

2

significant and something the Court should take into

3

consideration.

4

THE COURT:

That alone is

Well, I'm not sure in terms of flight,

5

given what he was facing before, that there's been that

6

significant a change.

7

saying, but the Bail Reform Act doesn't talk as much about what

8

he's alleged to have done or not have alleged to have done and

9

the strength of the evidence about what he did or didn't do, it

10

And I hear everything that you're

says does that point to the notion that he's a danger?

11

So, you've talked about the fact that there's no way

12

to ensure that he's not going to continue to try to affect the

13

outcome of his trial, and there's no conditions that could keep

14

him from reaching out, but can you address the issue of the

15

safety of any person or the community? which are the words that

16

I have to look at.

17

MR. ANDRES:

Sure.

Judge, the danger here is not a

18

physical danger or a danger of violence.

19

Mr. Manafort will continue to commit crimes.

20

community is that if Mr. Manafort is released, that there have

21

to be conditions that prevent him from continuing to commit

22

crimes, and it's on that point that we don't think there are

23

conditions.

24
25

The danger is that
The danger to the

I will say, Judge, in the first instance, we haven't
been presented with any conditions.

So, it's a little hard

 29
1

to -- for us to address whatever those conditions have been

2

because Mr. Manafort hasn't said anything about any conditions.

3

In fact, he's asked again that his bail not be revoked but,

4

rather, that it be lightened and that he be released from home

5

detention.

6

So it's the government's position that the danger at

7

issue is his ability to continue to commit crimes like the

8

crime that he's recently committed and been indicted for.

9

THE COURT:

Thank you.

10

MR. ANDRES:

11

MR. WESTLING:

Thank you, Your Honor.
Your Honor, in addressing the Court's

12

question regarding conditions or combination of conditions that

13

will reasonably assure the safety of others, persons and the

14

community, looking at the requirements, as the Court clearly

15

has of the Bail Reform Act, we suggest, first, that the history

16

of this matter, other than the issue we're here for today,

17

related to this new indictment, suggests that generally -- and

18

the Court has pointed out the exception regarding this prior

19

order involving contact with the media that was the subject of

20

the hearing back in December.

21

been in compliance with all the conditions of his bond.

22

suggests he's worked very hard in a very difficult program,

23

with a lot of monitoring, a lot of requirements, to meet those

24

requirements as this Court has handed them down and when they

25

have been abundantly clear to him.

But, Mr. Manafort has largely
It

 30
1

I think there is the issue that the Court has pointed

2

to here about there not being a no-contact order in this case.

3

There clearly are facts which the Court has weighed that I

4

don't know that we need to spend a lot of time regarding what's

5

in the new counts in the indictment.

6

things about the nature of the crimes, even assuming probable

7

cause, that inform the decision of whether there are conditions

8

or combination of conditions.

9

But I do think there are

First, we're not talking about a situation where the

10

witness tampering charges are based on any kind of threat,

11

offer of promise, of reward.

12

position is that there's not really even evidence of an intent

13

to influence.

14

on that that we're not here to upset.

15

In fact, you know, obviously, our

But again, there's been a probable cause finding

I think the nature of the question of does this

16

present a record on which a no-contact order would be

17

insufficient to stop this from happening? in my view the answer

18

to that is no.

19

of --

20

I think the other thing the Court is well aware

THE COURT:

Well, what do we do about the contacts

21

that happened after a no-contact order?

22

he's complied with orders when they're abundantly clear.

23

there anything that was not abundantly clear about Judge

24

Ellis's order?

25

MR. WESTLING:

You've told me that
Was

Well, I would argue, Your Honor, that

 31
1

Judge Ellis's order would be limited to the matter before him

2

and the investigation before him and would not, you know, reach

3

into the case before this Court, where this witness was

4

clearly, if he is in fact a witness, engaged.

5

THE COURT:

If he doesn't --

Well, that's why I looked at the order.

6

And I was struck by the breadth of the language, which says

7

defendant must avoid all contract, directly or indirectly, with

8

any person who is a victim or witness in the investigation or

9

prosecution of the defendant.

10
11
12

Do you -- is it your position that he could call
witnesses in this case, but not witnesses in that case?
MR. WESTLING:

Well, I think it's unclear, Your

13

Honor, frankly.

14

but the problem is that is a standard condition of bond that is

15

entered in every case and it is typically limited to the

16

contours of the case before the court giving the order.

17

it's very clear there was an order that said you can't call the

18

bankers, you can't call the whatever in the Virginia case.

19

It's less clear about what it meant for this case.

20

I recognize the Court may disagree with that,

And so

Additionally, there is no contact by Mr. Manafort

21

directly after that date, from everything I understand about

22

the factual timeline here.

23

violation of the contact order in the Eastern District of

24

Virginia, which, as you point out, Judge Ellis may well take up.

25

So I'm not sure there's even been a

I will note that the violation notice that's been

 32
1

entered by the pretrial services office in Virginia references

2

only the new indictment and not anything about the contact

3

issue.

4

So, I think, from our perspective, the trouble in

5

this case, from the beginning -- and the Court, you know, is

6

aware of this, has been -- we've been working very hard to try

7

to figure out who the people are.

8

know who the people are, it's really easy to say stay away from

9

them.

And, of course, when you

The Court just recently granted, this week, a motion for

10

a bill of particulars that identified a list of others.

11

generated a list of 55 potential people that, you know, we now

12

know, it's pretty clear they should not be, you know, on

13

anybody's radar for Mr. Manafort to reach out to.

14

That

I can also say that, Your Honor, the challenge, any

15

time you're trying to reach out, even when it's a legitimate

16

effort to contact a witness for the benefit of the defense,

17

that is something that often requires the client to be

18

involved, only because they know.

19

is to do that with your lawyer involved; that didn't happen

20

here.

21

The best practice, clearly,

But I -THE COURT:

None of the contacts said my lawyer is

22

going to be contacting you to talk about this, please tell them

23

everything you know.

24
25

MR. WESTLING:

Right.

All we know is that what it

said is I need to give you a heads-up about this development.

 33
1

And that could mean a lot of things if there had been a

2

follow-on conversation.

3

I think the answer here -- and I think the thing

4

we're not, you know, endeavoring to address really because, I

5

think, the law sort of says we shouldn't, is the nature of

6

what's provable in that case.

7

Court knows, will go to trial here at some point in the future

8

and we'll hash out what all the evidence is about what those

9

calls really meant.

10

I mean, those cases, as the

I think what we have to -- and I know the Court is

11

well aware of this, what we have to look at is what we've got,

12

sort of, on the face of it.

13

suggests that there was any kind of threat, any kind of

14

promise, any kind of the traditional things that you see in

15

cases involving an effort to tamper with or undermine witness

16

testimony.

17

And I don't see any evidence that

You know, it didn't start with, Have you been talked

18

to by the government?

19

expect someone to have asked if this was the typical witness

20

tampering concern.

21

I mean, that's -- unfortunately, I've had these situations

22

before and that's kind of what happens.

23

That would be the one question I would

Right?

Have you heard from the government?

I think here it suggests more there's a development

24

in the news and there's an effort to reach out.

The question

25

for this Court, however, is whether there's something that can

 34
1

keep that from happening in the future.

2

perspective, Your Honor, I think clarity is the solution to

3

that.

4

conditions like you can't contact any witness or any victim,

5

you know, typically the best practice is to say, Well, Judge,

6

the government should tell us who those people are so we don't

7

have a misunderstanding about this.

And the Bail Reform Act -- I mean, even when you have

8
9

And from my

I mean, the dilemma becomes we have no way of knowing
when D1 and D2 became witnesses.

Was it after they were

10

contacted by Mr. Manafort?

11

you know, the government is the one who gets to define all

12

these terms.

13

everybody, I think, should want is to see the purpose of the

14

Bail Reform Act played out in a way that will protect the

15

community, protect other persons, and to do that by ensuring

16

that Mr. Manafort knows exactly what he is supposed to do and

17

does it.

18

Was it before that?

When and --

And I think the important thing here is what

And here I think there was some lack of clarity about

19

that.

I'm not -- you know, that's just where we find

20

ourselves.

21

revocation, it seems to me, is very harsh, given that, you

22

know, there just isn't an indication, other that the

23

supposition of the people having gotten the calls, that this

24

must have had something to do with an attempt to influence my

25

testimony.

In this particular situation, the remedy of

 35
1

THE COURT:

Well, I feel like you're somewhat

2

understating what we have.

3

where -- an affirmative statement about what the facts really

4

are were made, and that is different than just reaching out, as

5

you keep calling it.

6

MR. WESTLING:

There are at least three contacts

But I think the difficulty, Your

7

Honor, is we don't understand the context.

And again, I'm not

8

here to try the case.

9

why, under this same set of facts, the indictment comes down,

But, I mean, there are lots of reasons

10

for the first time this entity is mentioned, there's an article

11

in the news about it that says something.

12

haven't talked to somebody in a long time and something I've

13

been involved in that's all over the news has gotten their work

14

in the paper, I may well call and say, hey, just so you know,

15

this is going on and this is my concern.

16

it relating to what's going to happen with these, quote,

17

witnesses in this case.

You know, if I

That's different from

18

And the problem we have is that the government still

19

hasn't ever made a supposition about did it hear from D1 or D2

20

before this?

21

they're not witnesses.

22

present in a proceeding, you know, and that's the requirement.

23

There has to be an expectation at the time that contact is made

24

that those people would be called to give testimony.

25

that's not clear on the record, then I think there's some

I would submit, Your Honor, if they didn't, then
I mean, they're not planning to be

And if

 36
1

problems with this case.

2

But, again, I keep trying to say, and I hope the

3

Court understands that -- I know it does -- but the nature of

4

the law suggests I shouldn't be, you know, trying to fight that

5

case now.

6

pointed out, in terms of trying to think through where do we

7

find ourselves today?

8

the record of compliance with the bond conditions overall,

9

where they are clear and unambiguous, you know, along with all

But we have to deal with it, as the Court has

And I would suggest to you, Your Honor,

10

the other factors in 3142(g), which continue to militate in

11

favor of Mr. Manafort remaining on bond during the pendency of

12

these trials.

13

other than this will keep happening.

14

becomes what do we do to make sure that it doesn't?

The government has not argued to the Court,

15

THE COURT:

16

MR. WESTLING:

I think the question then

What do we do?
I think the answer is that we enter a

17

condition that says you will have no contact -- and I would ask

18

for the provision, other than if your attorneys are involved --

19

with any witness that is involved in this case.

20

list of many.

21

whether the government should give us categories of people to

22

stay away from.

23

the client will be don't call anybody.

24
25

I would continue to ask that the Court consider

But I will tell you that our instructions to

THE COURT:
long time ago.

We now have a

It's simple, right?

I'm sure those were your instructions a

I have confidence that everyone said that a

 37
1
2

long time ago.
MR. WESTLING:

But I think the difficulty here, Your

3

Honor, is that this is a broad-ranging matter that is largely

4

something the government continues to expand, and with that it

5

puts Mr. Manafort in a position of not knowing whether any call

6

he makes is a risk of violating the unknown list of witnesses

7

in a situation where that's not made clear.

8
9

And so from my perspective, a clear no-contact rule
will solve the problem.

There's no indication of attempting

10

to, as I've said before, you know, threaten, do anything other

11

than reach out, with whatever intent that the government may

12

prove at a later date.

13

line of contact, it will solve this problem.

14

there's any evidence to suggest that that is not -- we're

15

trying, and in an appropriate way, for the Court to weigh the

16

balance it's forced to weigh where there is a general sense

17

that where there are conditions, remaining out of jail pending

18

a trial is the proper result.

19
20

And I think if we simply cut off that

And, I know that, you know, these are the kinds of
things that judges wish they didn't have to deal with.

21

THE COURT:

22

MR. WESTLING:

23

THE COURT:

24
25

And I don't think

I -- yes.
We all get that.

This has been, it continues to be, to

this minute, an extraordinarily difficult decision.
MR. WESTLING:

I understand that.

I understand that.

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But I believe that Mr. Manafort can be put in a position, Your

2

Honor, where conditions can be set, and I think that's largely

3

a no-contact rule that is clear and unambiguous from this

4

Court, that this will not happen again.

5

the Court does here today is all about preventing it from

6

happening again.

7

And the goal of what

And I think that anything else -- if we jump to the

8

thought that that means that he should be remanded today, that

9

may achieve the result, but it will do so in a manner that is

10

more harsh and creates more challenges for this defendant as he

11

faces two trials in separate courts and preparing for those

12

trials than the Bail Reform Act requires or compels under these

13

circumstances.

14

THE COURT:

15

You have the burden, Mr. Andres, so I'll let you --

16
17

All right.

Thank you.

since you're already standing.
MR. ANDRES:

My colleague has the law absolutely

18

wrong with respect to witness tampering.

Absolutely wrong.

19

doesn't -- a defendant can be involved in witness tampering

20

without a list of government witnesses.

21

person who may give testimony.

22

which is the issue that Mr. Manafort is reaching out to D1 and

23

D2, they control the Hapsburg Group.

24

he doesn't know that they're potential witnesses, and that's

25

what the law is, not that they've been told that there's a

Right?

It

It's any

And with the Hapsburg Group,

It's inconceivable that

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witness.

2

about influencing the testimony of a potential witness, a crime

3

for which Mr. Manafort has now been indicted.

4

absolutely violated the terms of his bail by committing a crime

5

while on bail.

6

It isn't about a contact -- no-contact list.

This is

He has

That's one.

Two, he has the law absolutely wrong about threats of

7

violence and witness tampering.

The courts have been

8

absolutely clear that providing a false story to a witness,

9

reminding them about the facts, which are false -- in this case

10

Mr. Manafort is reminding these individuals.

And if that

11

wasn't clear from his text, it's abundantly clear from Mr.

12

Kilimnik's text, which put in parenthesis, by the way, that

13

something is true.

14

don't have to remind another witness that it is true.

15

He provides them with facts that are false.

Generally, when something is true, you

The

16

Hapsburg Group absolutely operated in the United States.

17

provide an account that said only Europe, or Europe, at least,

18

and that is false.

19

witness a false story and reminds him of that story, the courts

20

have held repeatedly that that constitutes witness tampering.

21

They

When a witness -- when a defendant tells a

So Mr. Westling is wrong about what it means to be a

22

witness.

He's wrong about having to have a no-contact list or

23

a list of government witnesses.

24

methods that can be used to tamper with the witness.

25

Your Honor, earlier you asked --

He's wrong about the type of

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THE COURT:

Well, and I have already found, and I'm

2

not going to alter my finding, that there is probable cause to

3

believe that he committed the offense of witness tampering in

4

this record, he's been indicted for it, and that the rebuttable

5

presumption has arisen.

6

related, the extent of the witness tampering and whether it was

7

really witness tampering does go to the question of

8

dangerousness.

9

So, while all these things are

I believe the two questions that I have to wrestle

10

with, that are the most difficult, are whether he poses a

11

danger to the safety of any person or to the community, and

12

whether I have any confidence that he's going to abide by any

13

order that I impose.

14

the courtroom, and one is more difficult for the other side of

15

the courtroom.

16

And one is more difficult for one side of

And so that's where I feel like the focus of the

17

argument needs to be, is safety.

And I guess one question I

18

have for you is:

19

government was satisfied that it would ensure his appearance

20

and the safety of the community if we had either the home

21

detention that we have now or a $10 million bond.

22

count been in the original indictment, would you have moved for

23

his pretrial detention, do you think?

24

been talking about a substantial bond and significant

25

conditions?

At the beginning of these proceedings the

Had this

Or would we have still

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MR. ANDRES:

Judge, it's hard to talk about a

2

hypothetical in that respect.

3

That we're in a much, very -- we're in a very different

4

situation, not just because Mr. Manafort committed obstruction

5

of justice, witness tampering, which is the question, would we,

6

at the time, if he was indicted in October on those counts, we

7

have moved for detention?

8

about obstruction of justice during a time when he's on bail.

9

But what I would say is this:

Put that aside.

Today we're talking

So that, Judge, I think alters the calculation

10

significantly, at least as to with respect to the question of

11

whether the Court can have any confidence that Mr. Manafort

12

will abide by those conditions.

13

This is a case in which Mr. Manafort has lied to his

14

accountants and the IRS, a case where he's lied to his lawyers

15

and the Department of Justice with respect to FARA.

16

history of deception on behalf of Mr. Manafort in this case.

17

There is a

You had asked earlier, Judge, about the types of

18

dangers that are at issue that you have to address.

I think

19

Your Honor mentioned the case regarding perjury and a court

20

that found that perjury itself was a potential danger and a

21

basis to detain a defendant or to revoke his bail.

22

also the case in LaFontaine, which is the Second Circuit case

23

that Your Honor mentioned that said danger to the community,

24

courts have recognized that a defendant's attempts to influence

25

the testimony of potential witnesses constitutes the type of

There's

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2

danger to the community that can support detention.
So it is the actual effort to corrupt the integrity

3

of this process and tamper with witnesses that is the danger

4

that we're accounting for, and that is hardly resolved by

5

simply telling Mr. Manafort what he already knows, that there

6

are individuals that are witnesses, like D1 and D2.

7

Lastly, Judge -- or almost lastly, I should say, with

8

respect to Mr. Manafort, he has a history of using encrypted

9

applications, we know that from the evidence in this case.

10

There are at least a half dozen others that he uses.

11

aware that he's involved in doing something called foldering,

12

where he has an e-mail where multiple people have access.

13

draft an e-mail, they put it in a draft folder, it doesn't

14

actually get sent, so you don't know who it's going to or who's

15

reading it, but other people that have access to those e-mail

16

accounts also are able to read that e-mail.

17

hide the fact that they're sharing information or who's sharing

18

information between different people.

19

We're

They

So they basically

It's important to note as well, Judge, that this case

20

or this issue with the obstruction of justice, the government

21

did not learn about that by somehow subpoenaing or monitoring

22

or getting a search warrant for Mr. Manafort's communications.

23

We learned about it because a witness in this case, that was

24

part of the government's investigation, brought forth the

25

information about the tampering.

And that's when we started

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1

our investigation.

2

additional time to give our opinion about bail, and that's

3

where we started our investigation.

4

That's when we asked the Court for

So, there's no way to monitor Mr. Manafort's

5

communications in some effective way, at least because he's

6

adept at using encrypted applications and, B, we have no real

7

ability to monitor that.

8

that defense counsel suggests will address the issue of him --

9

Mr. Manafort tampering with witnesses is a no-contact list,

The notion that the only condition

10

it's just not sufficient to protect the community or to give

11

the Court any confidence that Mr. Manafort won't try this

12

again.

13
14
15

Again, it's not a single episode, it's a campaign
that took place over five weeks.
As we sit here today, Judge, Mr. Manafort has

16

committed a crime while he's on bail.

There's a rebuttable

17

presumption.

18

rebut that presumption.

19

relate to danger, namely, the witness tampering.

20

released on a recognizance bond of $10 million today.

21

minimum, the bond that he is released on today can't possibly

22

be sufficient to address the danger issue.

23

advanced anything with respect to -- even the bond that he

24

proposed with respect to risk of flight, I don't know, we

25

certainly haven't seen it, that documents have been filed, that

I don't think the defense has done anything to
The Court has before it crimes that
And he's
At a

And he hasn't

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people have signed it.

2

As we sit here today Mr. Manafort is out on a

3

$10 million recognizance bond and he's been indicted for a

4

crime while on bail.

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THE COURT:

6

I want to take some time to

be absorb it.

7
8

Thank you.

MR. WESTLING:

Your Honor, may I have just a minute

or two?

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THE COURT:

10

All right.

MR. WESTLING:

I'll give you a chance.

I want to address a couple of points

11

made by special counsel.

12

one of the things in the discussion about foldering we clearly

13

know is that the government's spending a lot of time monitoring

14

what Mr. Manafort is doing.

15

what's going on, I think it's important to note that while this

16

has been described as a campaign, we're not talking about there

17

being, you know, other circumstances that fit this bill.

18

so I think, you know, the ability to sort of deal with this in

19

a way that sort of discontinues any contact with anyone.

20

You know, I think the first is that

And to the extent that that's

And

I think the other thing here that's significant is

21

there's a lot of emphasis on the use of encrypted programs and

22

things.

23

hear myself talk, I will admit that, but, you know, WhatsApp is

24

being used by 1.2 billion people in the world right now.

25

mean, the idea that something is special about using that app,

And I guess I just want to say, and it may just be to

I

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which all of my children use, is somehow nefarious, I think is

2

a little bit of gilding the lily here.

3

I think that the important thing for the Court to

4

recognize, and I know it does, is this is a difficult balancing

5

matter, but the general standards here should go towards trying

6

to find a way to keep Mr. Manafort out on release with

7

conditions that will prevent this conduct in the future.

8

think we've talked to the Court about what those may be and we

9

ask that you consider that.

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11

THE COURT:

All right.

Thank you.

I

I'm going to take

a break and return in approximately 15 minutes.

12

I would like to note to the people that are from the

13

media that are going to have an interest in reporting whatever

14

takes place after the break, that I do not want people standing

15

up and running out of this courtroom.

16

the overflow courtroom for the second portion of this, you're

17

welcome to do that.

18

you're seated, you're seated until court is adjourned.

So if you want to go to

But otherwise when you come back and

19

All right.

Thank you.

20

(Recess.)

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THE COURTROOM DEPUTY:

You can remain seated now.

Your Honor, recalling criminal

22

case number 17-201-1, the United States of America v. Paul J.

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Manafort, Jr.

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25

THE COURT:

What is that?

Is that the hall?

we having some other room broadcast in here?

Or are

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(Pause.)

2

THE COURT:

All right.

As I was planning to start

3

this ruling, no matter which way I ruled, there's no question

4

that I have the legal authority on this record to revoke the

5

defendant's bond today.

6

210 F.3d 125, that was the most similar case I could find.

7

defendant in a white collar case who had no history of violence

8

coached a witness by reminding her what to say, but did not

9

threaten or intimidate her.

In United States versus LaFontaine,
A

The trial court's decision to

10

revoke the defendant's bond was upheld by the circuit.

11

Although witness tampering that is accompanied by means of

12

violence may seem more egregious, the court said the harm to

13

the integrity of the trial is the same, no matter which form

14

the tampering takes.

15

Therefore, the court found that the nonthreatening

16

witness tampering by a defendant without a violent criminal

17

history was sufficiently dangerous to the community to support

18

the revocation of his bond.

19

In United States versus Aron, a Fifth Circuit case,

20

904 F.2d 221, although the defendant -- the witness in the case

21

testified that he felt intimidated by the defendant's visit to

22

his home while the defendant was on release, the defendant

23

didn't actually threaten the witness when they spoke or use

24

violence.

25

revocation and detention decision.

However, the circuit upheld the district court's

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1

In United States versus Gilley, out of the middle

2

District of Alabama, 771 F.Supp.2nd 1301, the district court

3

upheld a magistrate judge's revocation of bond due to the

4

probable cause finding that the defendant committed witness

5

tampering by bribing a witness to testify falsely.

6

found that continued pretrial detention was appropriate because

7

any kind of witness tampering affects the integrity of the

8

court and invokes the public concern of encouraging individuals

9

to serve as witnesses.

The Court

10

In United States versus Mustachio, 254 Fed.Appx. 853,

11

the court said where the post-release criminal conduct involved

12

obstruction of justice through intended destruction of evidence

13

and deceit of the court, defendants can hardly claim that

14

conclusory denials of any intent to jeopardize the safety of

15

others sufficed to rebut the presumption in favor of detention.

16

United States versus Mackie, out of the Fifth

17

Circuit, the court held upholding bond revocation where there

18

was probable cause to believe that the defendant induced travel

19

as part of a fraud scheme, a nonviolent offense, was still

20

sufficient to support the revocation of bond.

21

It is also worth observing that a fair proportion of

22

the cases in which bond is revoked or bond is denied involve

23

actual threats to witnesses.

24

versus Gotti, 794 F.2d 773, out of the Second Circuit.

25

with or without threats, pursuant to § 3148, the indictments on

For instance, United States
But

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the witness tampering charges give rise to a rebuttable

2

presumption that the defendant is likely to flee or pose a

3

danger.

4

today to rebut the presumption.

5

And there has been very, very little presented here

However, the law is clear, if I find that there are

6

conditions that will assure that the person will not flee or

7

pose a danger to the safety of any other person or the

8

community, and that he will abide by those conditions, I

9

shall -- the statute says must -- treat the defendant in

10

accordance with the provisions of § 3142, and that says that I

11

shall, I must, release him under the least restrictive

12

conditions to accomplish those goals.

13

Thus, the touchstone of the Bail Reform Act is still

14

and always has been flight and safety.

15

cannot impose pretrial detention to punish this defendant for

16

the alleged conduct in the new allegations.

17

struggled with this decision.

18

The law is clear that I

And, so, I have

At the end of the day, as I have emphasized, it's the

19

government that bears the burden to prove that there are no

20

conditions that can ensure the defendant's appearance and the

21

safety of any person or the community.

22

there's been any change in the defendant's risk of flight.

23

additional charges don't really change the calculus that much,

24

given what he's already facing.

25

Is he a danger?

Here, I don't believe
The

The statute first talks about the

 49
1

need for bond to assure no harm to any person or the community.

2

There's been no harm to any person alleged.

3

jury has found probable cause to believe that the defendant has

4

attempted to corruptly persuade people to lie, there's been no

5

evidence of even a threat of harm to any person.

6

here is an alleged threat of harm to the community.

7

have what one would consider the typical sort of harm to the

8

community at large; dangerous substances being pedalled on the

9

corner, unlawful possession of firearms.

While the grand

We don't

The harm in this case

10

is the harm to the administration of justice.

11

to the integrity of the court system.

12

What we have

It is the harm

And I've wrestled with this because now that the

13

Office of Special Counsel has decided to supersede, we have a

14

situation where this defendant will be tried for trying to

15

inflict that very harm in just three-months time.

16

sanction is warranted, I will have the opportunity to vindicate

17

the community's interest at that time, if and when he's found

18

guilty.

19

And so if a

But then I still have to determine what conditions

20

could there be?

This is not middle school, I can't take his

21

cell phone.

22

that Mr. Westling tells me I need clearly list in the order,

23

will he call the 57th?

24

well, there wasn't a clear enough order saying not to do it.

25

And my problem is, I don't think I can draft a clear enough

And if I say, well, don't call the 56 witnesses

All the defendant has said to me is,

 50
1

order to cover every possible future violation of the

2

United States code, and I shouldn't have to.

3

I thought about this long and hard, Mr. Manafort.

4

have no appetite for this.

5

blind eye to these allegations.

6

the persistence of the contacts and their obvious intent and

7

import, it is how they were perceived and received by the

8

person to whom they were made.

9

occurred while the defendant was already on bond and already

10
11

I

But in the end, I cannot turn a
Given the number of contacts,

And this witness tampering

under an order by another judge not to do this.
The indictment alleges a corrupt attempt to undermine

12

the integrity and truth of the fact-finding process upon which

13

our system of justice depends.

14

was inappropriate for the government to bring these matters to

15

my attention.

16

absolutely was not.

17

papers, but this hearing is not about politics.

18

about the conduct of the Office of Special Counsel.

19

about the defendant's alleged conduct.

20

first time we've had to talk about the rules and we've had to

21

talk about skating close to the line.

22

The defense suggested that it

So I want to state quite clearly that it
You struck that note repeatedly in your
It is not
It is

And this is not the

I am very troubled that the contacts with these

23

witnesses are alleged to have taken place even after you were

24

under an explicit order not to contact witnesses, directly or

25

indirectly.

I am concerned that you seem inclined to treat

 51
1

these proceedings as just another marketing exercise and not a

2

criminal case brought by a duly appointed federal prosecutor in

3

a federal court.

4

hands instead of relying on the defense mounted by your counsel

5

who are fighting vigorously and fiercely and zealously on your

6

behalf, but always within the rules.

7

You seem inclined to take matters in your own

And so all of this, at bottom, affects my judgment

8

about whether you can be trusted to comply with the Court's

9

directives.

And that is the finding that the statute also

10

requires me to make if I release you, and I can't make it.

11

have abused the trust placed in you six months ago.

And,

12

therefore, the government's motion will be granted.

And the

13

defendant will be detained pending trial as of today.

14
15

MR. WESTLING:

You

Your Honor, we would ask that the

Court stay imposition of any remand to allow us to appeal.

16

THE COURT:

17

MR. ANDRES:

What's the government's position on that?
Judge, there are no conditions to

18

address any of the concerns the Court -- there's nothing that

19

will prevent them from appealing immediately, and if they

20

prevail on appeal, Mr. Manafort can be released.

21

there are no conditions, as the Court has found, to guard

22

against the danger to the community, so we oppose that

23

application.

24
25

THE COURT:

But presently

And I'm also concerned that now that I've

issued this order, that the risk of flight has just multiplied

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substantially.
So I appreciate the request, and it's a serious
request and I understand that, but I'm going to deny it.
*

*

*

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CERTIFICATE OF OFFICIAL COURT REPORTER

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4
5

I, JANICE DICKMAN, do hereby certify that the above

6

and foregoing constitutes a true and accurate transcript of my

7

stenograph notes and is a full, true and complete transcript of

8

the proceedings to the best of my ability.

9

Dated this 15th day of June, 2018.

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/s/________________________

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Janice E. Dickman, CRR, RMR
Official Court Reporter
Room 6523
333 Constitution Avenue NW
Washington, D.C. 20001

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