Case 1:18-cr-00083-TSE Document 216 Filed 08/09/18 Page 1 of 5 PageID# 4171 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division UNITED STATES OF AMERICA v. Crim. No. 1:18-cr-83 (TSE) PAUL J. MANAFORT, JR., Defendant. GOVERNMENT’S MOTION FOR CURATIVE INSTRUCTION The United States of America, by and through Special Counsel Robert S. Mueller, III, hereby moves for a curative instruction, at the beginning of proceedings on August 9, 2018, correcting the Court’s erroneous admonishment of government counsel in front of the jury on August 8, 2018. The record demonstrates that the Court mistakenly faulted the government for permitting IRS revenue agent Michael Welch, the government’s expert witness, to remain in the courtroom during the proceedings, when in fact on the first day of trial the Court had expressly granted the government’s motion to do so. The Court’s reprimand of government counsel suggested to the jury—incorrectly—that the government had acted improperly and in contravention of Court rules. This prejudice should be cured. A. Background On the first day of trial, after jury selection and before opening statements, the government moved to exclude witnesses from the courtroom during the proceedings “with the exception of our expert and our case agent.” Tr. 7/31/18 at 14-15, See Attachment B. The Court asked the defense if it had any objection to the government’s case agent and expert remaining in the courtroom, and the defense answered no. Id. at 15. The Court then asked for the name of the expert; government 1 Case 1:18-cr-00083-TSE Document 216 Filed 08/09/18 Page 2 of 5 PageID# 4172 counsel stated “Special Agent Michael Welch,” and, in response to the Court’s further question, explained that Mr. Welch is an IRS revenue agent and an expert in tax computation. Id. The Court stated: “All right. I will grant the motion to exclude witnesses.” Id. On August 8, 2018, at the start of Mr. Welch’s testimony, the government asked if he had been present in the courtroom during the trial. Tr. 8/8/18 at 1661, see Attachment A. When Mr. Welch responded that he had, the Court expressed surprise and stated that it was the Court’s “clear recollection” that it had not permitted expert witnesses to remain in the courtroom and that it did not “typically” do so. Id. The court instructed government counsel that he must “ask specifically.” Id. The Court admonished the government to not “do that again,” and stated that the government needs to “be clear about that.” Id. at 1662. B. Argument The record establishes that the government acted appropriately with respect to Mr. Welch’s presence in the courtroom. It moved the Court to allow Mr. Welch to remain, and the Court expressly granted the motion. Tr. 7/31/18 at 14-15. The Court’s sharp reprimand of government counsel in front of the jury on August 8 was therefore erroneous. And, while mistakes are a natural part of the trial process, the mistake here prejudiced the government by conveying to the jury that the government had acted improperly and had violated court rules or procedures. The exchange could very well lead the jury to reach two erroneous inferences: (a) that Mr. Welch’s testimony is not credible because he was improperly privy to the testimony of other witnesses, and (b) that the government sought to secure an unfair advantage by secreting its expert in the courtroom without permission. Even if the Court did not intend to suggest that the government had been insubordinate, actions that project a “negative impression” of one side, United States v. Lefsih, 867 F.3d 459, 467 2 Case 1:18-cr-00083-TSE Document 216 Filed 08/09/18 Page 3 of 5 PageID# 4173 (4th Cir. 2017) (internal quotation marks omitted), or that reveal “continual agitation and hostility toward counsel,” United States v. Cassiagnol, 420 F.2d 868, 879 (4th Cir. 1970), can lead the jury to decide the case on improper grounds. The government is therefore entitled to a curative instruction. See United States v. Martinovich, 810 F.3d 232, 240-41 (4th Cir. 2016) (prejudice from district court’s errors, including incorrectly “chastis[ing]” defense counsel and “accusing him of going outside the trial court procedure,” was limited by curative instruction). Accordingly, the government moves for a curative instruction, at the beginning of proceedings on August 9, 2018, stating that: on the prior day the Court had admonished the government for failing to “ask specifically” that its expert witness be permitted to remain in the courtroom; that in fact the government had obtained permission from the Court for Mr. Welch to remain in the courtroom; that the Court was mistaken in its suggestion that the government had not followed court procedures; and that the jury should not be under the impression that the government or the witness had acted improperly or violated a court order or rule. CONCLUSION For these reasons, the government requests that the Court give the referenced curative jury instruction at the start of the proceedings on August 9, 2018. 3 Case 1:18-cr-00083-TSE Document 216 Filed 08/09/18 Page 4 of 5 PageID# 4174 Respectfully submitted, ROBERT S. MUELLER, III Special Counsel Dated: August 9, 2018 /s/ Andrew Weissmann Greg D. Andres Brandon L. Van Grack Special Counsel’s Office U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, D.C. 20530 Telephone: (202) 616-0800 Uzo Asonye Assistant United States Attorney Eastern District of Virginia Attorneys for United States of America 4 Case 1:18-cr-00083-TSE Document 216 Filed 08/09/18 Page 5 of 5 PageID# 4175 CERTIFICATE OF SERVICE I hereby certify that on the 9th day of August, 2018, I will cause to be filed electronically the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following: Thomas E. Zehnle (VA Bar No. 27755) Law Office of Thomas E. Zehnle 601 New Jersey Avenue, N.W., Suite 620 Washington, D.C. 20001 tezehnle@gmail.com Jay R. Nanavati (VA Bar No. 44391) Kostelanetz & Fink LLP 601 New Jersey Avenue, N.W., Suite 620 Washington, D.C. 20001 jnanavati@kflaw.com /s/ ____ Uzo Asonye Assistant United States Attorney U.S. Attorney’s Office Eastern District of Virginia 2100 Jamieson Avenue Alexandria, VA 22314 uzo.asonye@usdoj.gov Phone: (703) 299-3700 Fax: (703) 299-3981 Attorney for the United States of America 5 Case 1:18-cr-00083-TSE Document 216-1 Filed 08/09/18 Page 1 of 2 PageID# 4176 U.S. v. Manafort M. Welch - Direct 1661 1 an expert in an area and the extent to which you accept that 2 witness' testimony as expert testimony are matters left 3 entirely to you, the jury. 4 instructions on this as well as other matters at the end of 5 the case. And I'll give you further Mr. Asonye, you may proceed. 6 7 BY MR. ASONYE: 8 Q. 9 courtroom so far in this trial? Agent Welch, have you been present each day in this 10 A. Yes, I have. 11 Q. Have you heard all of the testimony -- 12 THE COURT: I thought we excluded witnesses. 13 MR. ASONYE: 14 expert witnesses, Your Honor -- 15 THE COURT: 16 MR. ASONYE: 17 THE COURT: Except for -- Your Honor, except for Is that right? -- and case agents. The case agents I did admit. But the 18 next time we do this, it's my clear recollection, Mr. Asonye, 19 that I wasn't admitting experts. 20 specifically. 21 permit that, but I want you to remember that. 22 allow the case agents to remain. 23 experts for either side to remain. 24 25 You need to ask You're going to go ahead now, I'm going to MR. ASONYE: I typically I don't typically allow Appreciate it, Your Honor. We'll check the transcript, but we believe that we said case agent Tonia M. Harris OCR-USDC/EDVA 703-646-1438 EASTERN DISTRICT OF VIRGINIA Case 1:18-cr-00083-TSE Document 216-1 Filed 08/09/18 Page 2 of 2 PageID# 4177 U.S. v. Manafort M. Welch - Direct 1 1662 and expert witness. THE COURT: 2 Well, let me be clear: 3 what the transcript says. 4 you to remember don't do that again. 5 witnesses, I mean everybody. 6 make that clear. 7 do it in the future. I don't care Maybe I made a mistake. But I want When I exclude Now, it may be that I didn't It may be that I did allow this, but don't 8 MR. ASONYE: 9 THE COURT: Fair enough, Your Honor. I beg your pardon? 10 MR. ASONYE: I said fair enough, Your Honor. 11 THE COURT: Well, it's right. 12 All right. I just want you to have that in mind, Fair enough. 13 Mr. Asonye, because you appear here again. 14 witnesses, I mean everybody unless I make a specific 15 exception, and I do for case agents. Proceed. 16 17 And when I exclude It's not a big deal, but I want you to be clear about that. 18 MR. ASONYE: 19 THE COURT: May I proceed, Your Honor? You may. 20 BY MR. ASONYE: 21 Q. 22 have testified thus far in this case? 23 A. Yes, I have. 24 Q. And have you reviewed all the exhibits that have been 25 admitted thus far in this trial? Have you heard all of the testimony of the witnesses who Tonia M. Harris OCR-USDC/EDVA 703-646-1438 EASTERN DISTRICT OF VIRGINIA Case 1:18-cr-00083-TSE Document 216-2 Filed 08/09/18 Page 1 of 2 PageID# 4178 U.S. v. Manafort 14 1 you need for that? 2 MR. ZEHNLE: 3 THE COURT: 4 MR. ZEHNLE: 5 MR. WESTLING: 6 Thirty minutes. All right. And you're Mr. Westling? No, I'm Mr. Zehnle. We've been shuffling around. apologize for that. 7 THE COURT: So she's innocent. 8 All right. How long did you say you needed? 9 MR. ZEHNLE: 10 THE COURT: Thirty minutes. All right. I think that's appropriate 11 and sensible and be prepared to go on. 12 address the 40 pages that are still in dispute. 13 anticipate those coming up in the first witness or so? 14 We MR. ANDRES: I'm not going to Do you Several of them, but not any of the 15 ones that really are the longer ones that are really of 16 concern, but we can let defense know who we are going to call 17 and what exhibit -- 18 THE COURT: Which ones -- yes, advise chambers and 19 the defendants which ones you intend to use in these first few 20 witnesses so that I can pay attention to those. 21 MR. ANDRES: 22 THE COURT: 23 MR. ASONYE: Okay. Thank you. Judge, I'm sorry, we also -- the 24 Government would move to exclude any witnesses once the 25 opening statements start with the exception of our expert and Tonia M. Harris OCR-USDC/EDVA 703-646-1438 Tonia M. Harris OCR-USDC/EDVA (703)646-1438 Case 1:18-cr-00083-TSE Document 216-2 Filed 08/09/18 Page 2 of 2 PageID# 4179 U.S. v. Manafort 15 1 our case agent. 2 3 THE COURT: All right. agent and the expert? 4 MR. WESTLING: 5 THE COURT: 6 MR. ASONYE: 7 Any objection to the case No, Your Honor. Who is the expert? Special Agent Michael Welch, Your Honor. 8 THE COURT: And in what discipline is he an expert? 9 MR. ASONYE: In tax, Your Honor, tax computation, 10 11 Your Honor. He's the IRS revenue agent. THE COURT: All right. I will grant the motion to 12 exclude witnesses. And other than the defendant, does the 13 defendant wish to have anyone else present. 14 MR. WESTLING: 15 THE COURT: 16 MR. ANDRES: 17 MR. WESTLING: 18 THE COURT: 19 20 cooperation. Anything else before I recess? No, Judge. Thank you. Nothing from the defense, Your Honor. All right. I thank counsel for your Court stands in recess until 2:45. (Lunch Recess 2:00 p.m.) P R O C E E D I N G S 21 22 No, Your Honor. A F T E R N O O N S E S S I O N 23 24 25 THE COURT: All right. Mr. Flood, you may bring the jury in, please. Tonia M. Harris OCR-USDC/EDVA 703-646-1438 Tonia M. Harris OCR-USDC/EDVA (703)646-1438