Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 1 of 67 1 1 BEFORE THE UNITED STATES DISTRICT COURT 2 3 4 5 6 7 8 FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA, . . Plaintiff, . . vs. . . CONCORD MANAGEMENT AND . CONSULTING LLC, . . Defendant. . - - - - - - - - - - - - - - - - 9 11 APPEARANCES: 12 For the Government: 13 14 15 16 18 21 JONATHAN KRAVIS, AUSA KATHRYN RAKOCZY, AUSA DEBORAH CURTIS, AUSA LUKE JONES, AUSA U.S. Attorney's Office 555 Fourth Street Northwest Washington, D.C. 20530 HEATHER ALPINO, AUSA U.S. Department of Justice National Security Division 950 Pennsylvania Avenue Northwest Washington, D.C. 20530 17 20 Washington, D.C. September 16, 2019 10:02 a.m. TRANSCRIPT OF STATUS CONFERENCE BEFORE THE HONORABLE DABNEY L. FRIEDRICH UNITED STATES DISTRICT JUDGE 10 19 Case Number 18-CR-32 For Defendant Concord Management and Consulting LLC: ERIC DUBELIER, ESQ. Reed Smith LLP 1301 K Street Northwest Suite 1000, East Tower Washington, D.C. 20005 22 23 24 25 KATHERINE SEIKALY, ESQ. Reed Smith LLP 7900 Tysons One Place Suite 500 McLean, Virginia 22102 Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 2 of 67 2 1 2 3 Official Court Reporter: SARA A. WICK, RPR, CRR 333 Constitution Avenue Northwest U.S. Courthouse, Room 4704-B Washington, D.C. 20001 202-354-3284 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Proceedings recorded by stenotype shorthand. Transcript produced by computer-aided transcription. Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 3 of 67 3 1 2 P R O C E E D I N G S THE COURTROOM DEPUTY: This is Criminal Case year 3 2018-032, United States of America versus Concord Management and 4 Consulting LLC, defendant number 2. 5 6 7 Counsel, please come forward and introduce yourselves for the record. MR. KRAVIS: Good morning, Your Honor. Jonathan 8 Kravis for the United States. With me at counsel table are 9 Deborah Curtis, Luke Jones, and Kathryn Rakoczy from the D.C. 10 U.S. Attorney's Office and Heather Alpino from the National 11 Security Division. 12 THE COURT: Good morning. 13 MR. DUBELIER: Good morning, Your Honor. Eric 14 Dubelier and Katherine Seikaly for Concord Management and 15 Consulting. 16 17 18 THE COURT: Good morning, Mr. Dubelier and Ms. Seikaly. All right. So we are here for two reasons. I have 19 questions for both sides on Concord's motion for supplemental 20 bill of particulars. 21 proposed scheduling order for trial notices and motions that I 22 have not yet set. 23 24 25 I also want to discuss the parties' Before I get into the merits of Concord's motion, Mr. Kravis, I have a question for you. MR. KRAVIS: Yes, Your Honor. Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 4 of 67 4 1 THE COURT: In your opposition to Concord's latest 2 motion, you state -- and I'm referring to footnote 3. You state 3 that Concord misinterprets the indictment when it states that 4 the only FEC function that the defendants allegedly conspired to 5 impair was administering the FECA disclosure requirements. 6 say this is not so because the indictment also alleges that the 7 conspirators interfered with the FEC's function of enforcing the 8 statutory prohibition on certain expenditures by foreign 9 nationals. You go on to say that the government identified the 10 foreign expenditure ban as one of the regulatory activities 11 impaired by the conspirators in its bill of particulars. 12 You The problem I'm having is that when I denied Concord's 13 motion to dismiss nearly a year ago, I interpreted the 14 indictment to allege a conspiracy that targeted only the 15 administration of federal disclosure requirements and not some 16 other set of functions, such as the enforcement of the ban on 17 expenditures by foreign nationals. 18 So I am concerned. If you disagreed with my interpretation 19 in that ruling, why didn't you bring that to my attention in 20 terms of a motion to reconsider, or is this just -- am I 21 misreading your footnote? 22 MR. KRAVIS: You are not misreading the footnote, Your 23 Honor. I had -- the government had interpreted the Court's -- 24 the section of the Court's memorandum opinion denying the motion 25 to dismiss, the section dealing with the lawful government Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 5 of 67 5 1 functions at issue, the government had interpreted that section 2 as focusing on the disclosure requirements because the 3 disclosure requirements were a principal focus of the briefing 4 on the motion to dismiss. 5 And in particular, the Court's opinion, as I understood it, 6 was making the point that the issue of whether the defendants 7 had actually violated a disclosure or registration requirement 8 could be relevant to the government's ability to prove that the 9 acts of deception and concealment that were alleged in the 10 indictment were connected to impairment of a lawful government 11 function as opposed to merely an attempt to mislead American 12 voters. 13 And so the government's understanding of that portion of 14 the opinion was that it was focused on the lawful government 15 functions of the disclosure requirements for that reason, 16 because the disclosure requirements were a significant issue on 17 the motion to dismiss and because the disclosure requirements 18 raised issues about the government's -- the nature of the 19 government's proof at trial. 20 But the government did not understand the opinion to mean 21 that the government was precluded from arguing that there were 22 other lawful government functions if those functions were 23 properly identified in the indictment. 24 25 And I would add, the indictment is the charging instrument in the case. If the Court disagrees with the government's Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 6 of 67 6 1 interpretation of what is alleged in the indictment, then the 2 Court's interpretation of the indictment controls. 3 extent that there may be language in an opinion of the Court, 4 memorandum opinion that is not consistent with what is actually 5 alleged in the indictment, I don't think that precludes the 6 government from making that argument. 7 charging document. 8 purposes of what the jury should be asked to decide. 9 But to the The indictment is the That is the controlling instrument here for THE COURT: All right. Well, I'm just concerned, 10 because -- and I'm looking at the opinion itself. 11 that the text and structure of the indictment reveal that the 12 government functions targeted by the conspiracy are alleged 13 solely to be the administration of federal requirements for 14 disclosure. 15 It held So this indictment, the way in which it's drafted, is 16 difficult to follow in terms of what the objectives are. 17 did my best back in October to try to discern what the 18 government's theory was. 19 the ban on foreign nationals might be relevant to show motive or 20 intent, for example, but as I see it, my motion -- my ruling on 21 the motion to dismiss clearly held that the sole functions 22 allegedly targeted by the conspiracy were the administration of 23 federal requirements by disclosure. 24 25 And I I made it clear in that opinion that So to the extent you read that as not -- I mean, if I had been on the receiving end of this, I would be concerned that Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 7 of 67 7 1 when it comes time for jury instructions you've got a court who 2 thinks the indictment says something other than what you are 3 telling me it meant. 4 MR. KRAVIS: Obviously, there are issues here, and I 5 think this is one of the problems with the defendant's motion 6 for a second bill of particulars. 7 what exactly the government will have to prove and what exactly 8 the jury will have to decide that will need to be resolved on -- 9 in argument over jury instructions, motions in limine, and There are issues here about 10 motions for judgment of acquittal at the end of the government's 11 case. 12 indictment not to allege one government function as the function 13 of the FEC to prohibit independent expenditures by foreign 14 nationals, the government respectfully submits that that 15 interpretation of the indictment is not correct. But to the extent that the Court interpreted the 16 In fact, the indictment does allege in two different 17 paragraphs that it is a function of the FEC to prohibit foreign 18 nationals from making any contributions, expenditures, 19 independent expenditures, or disbursements for election year 20 communications. 21 requirements aid the FEC in enforcing FECA's limitations and 22 prohibitions, including the ban on foreign expenditures. 23 government included the ban on foreign expenditures as one of 24 the government functions in its bill of particulars. 25 The indictment also alleges that the reporting The I think the government has the -- I think the government's Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 8 of 67 8 1 interpretation of the indictment is correct here, and if the 2 Court -- I will point out that the Court's -- to the extent the 3 Court has interpreted the indictment differently in its order on 4 the motion to dismiss, that is, I think, technically dictum 5 because the Court denied the motion to dismiss, and it denied it 6 on the basis of the other regulatory functions identified in the 7 indictment. 8 9 10 So -- THE COURT: But to the extent Concord had a broader challenge, I didn't address any of that in that opinion. MR. KRAVIS: I don't understand. The Court held in 11 that ruling on the motion to dismiss that the government, that 12 the indictment articulated a viable theory of criminal liability 13 with respect to Concord. 14 lawful government functions of the Federal Election Commission 15 and the DOJ FARA Unit to enforce the registration and reporting 16 requirements that are identified in the indictment. 17 And in doing so, it relied on the Whether there were other government functions that were 18 also alleged in the indictment that could also support a viable 19 legal theory of criminal liability was not necessary to the 20 Court's holding, because the Court denied the motion to dismiss 21 on the basis of those legal theories. 22 In any event, to the extent that the Court's ruling on this 23 intended to interpret the indictment to exclude those lawful 24 government functions, the government submits that interpretation 25 of the indictment is simply incorrect. And if the Court wants Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 9 of 67 9 1 us to file a motion on that issue now, we can do that. 2 also address it at the time. 3 THE COURT: We can I'm just surprised you didn't fire that 4 off right when the opinion came. 5 MR. KRAVIS: Again, our understanding of what was 6 being said in that section of the opinion was that the 7 government -- or excuse me, not the government, that the Court 8 was focusing on the issue of the disclosure requirements because 9 that was an issue that was -- that was a particular government 10 function that was heavily litigated in the context of the motion 11 to dismiss because the government and the defense had taken very 12 different positions on what exactly the government would have to 13 prove and what exactly the government had to allege with respect 14 to those -- with respect to those government functions and 15 because the Court was focused on a different element of the 16 defendant's challenge to the indictment, which was the issue of 17 whether the acts of concealment and deception alleged in the 18 indictment were directed towards impairing a lawful government 19 function. 20 THE COURT: To be clear so I understand the 21 government's position now, is it the government's position that 22 the indictment alleges a conspiracy to impair not one, but two 23 FEC functions, is that correct, the first being administering 24 the disclosure requirements and the second being enforcing the 25 ban on foreign expenditures? Is that correct? Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 10 of 67 10 1 MR. KRAVIS: 2 THE COURT: 3 MR. KRAVIS: 4 THE COURT: That's correct. And as the -- That's the government's view? Yes. And as the indictment -- All right. Okay. Well, again, I'm 5 baffled that this didn't trigger a motion from the government at 6 the time, because I start out the analysis saying to address 7 Concord's challenges to the indictment, it is necessary first to 8 identify the lawful government functions that the defendants 9 allegedly conspired to impair. 10 And I talk about the language, and I talk about the 11 ambiguity in the indictment. At the time the government had 12 described the relevant functions broadly as regulating and 13 administering the participation of foreign nationals in the 14 American electoral process or promoting transparency in the 15 American political and electoral process. 16 Likewise, Concord has described the relevant function, to 17 the extent one exists, as electoral processes or administering 18 elections. 19 indictment, however, point to a narrow set of functions. 20 And then I go on to say, the text instruction of the And it's after that that I define what I see the indictment 21 to allege. And I understand you would like to have me 22 reconsider that, but -- and I do think we will need briefing on 23 this. 24 If I were to reconsider my ruling, what impact, if any, 25 does the bill have on how I should interpret the indictment? Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 11 of 67 11 1 MR. KRAVIS: 2 THE COURT: The bill of particulars the government has MR. KRAVIS: I mean, the first bill of particulars is 3 I'm sorry? provided. 4 5 a -- is the government's controlling interpretation of the 6 language of the indictment, and the bill of particulars did 7 identify the ban on certain expenditures by foreign nationals as 8 one of the lawful government functions impaired. 9 THE COURT: Okay. And to the extent I were to agree 10 and say that the indictment alleges a conspiracy to interfere 11 with the FEC's enforcement of the ban on expenditures by foreign 12 nationals, shouldn't I give Concord the chance to renew its 13 motion to dismiss to challenge this theory? 14 MR. KRAVIS: No. These aren't different theories that 15 Concord gets to challenge seriatim. 16 before it. 17 opposed. 18 what there is -- 19 Concord had the indictment Concord filed a motion to dismiss. We had argument. THE COURT: The government The Court ruled on it. I'm not sure But that initial motion that Concord filed 20 talked about the general policing and this is a broad 21 indictment. 22 address in that first round of briefing, and I did not address 23 it because of the way in which I interpreted the indictment. 24 interpreted it more narrowly. 25 There was a challenge in there that I did not MR. KRAVIS: I guess I'm not -- I Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 12 of 67 12 1 2 THE COURT: wasn't addressed in that opinion that they argued. 3 4 MR. KRAVIS: THE COURT: Well, it might be meritless, in your view, but I do think there's -- 7 MR. KRAVIS: 8 THE COURT: 9 I'm not sure I understand what that argument would be. 5 6 So I think that there is an argument that I don't mean -- I'm sorry. I do think -- we will hear from Mr. Dubelier, but from what I recall from the motion at the 10 time, there was a broader attack on the indictment other than 11 just the FEC disclosure requirements. 12 MR. KRAVIS: But it's not that I think the argument is 13 meritless. 14 like. 15 here today that Concord has not already made is, I guess, they 16 could argue the indictment does not actually allege that the ban 17 on expenditures by -- certain expenditures by foreign nationals 18 is a lawful function of the FEC that was impaired by the 19 conspiracy. 20 interpretation of the indictment, is this lawful government 21 function sufficiently alleged to allow the government to argue 22 to the jury that Concord should be held liable on that basis. 23 It's that I don't know what the argument would look I mean, the only argument that I can think of standing That is, they could challenge just the If they want to file that motion, I'm not -- I don't oppose 24 putting it in the order. 25 frivolous. I have to say, I think that motion is I think we've pointed to language that clearly Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 13 of 67 13 1 2 alleges that lawful government function. But setting -- so there's that argument of does the 3 indictment actually allege this government function. I can't 4 conceptualize any other argument that Concord could make on a 5 motion to dismiss other than that argument. 6 is not like Concord gets to sort of seriatim challenge the 7 government's various theories of liability. 8 indictment before it. 9 Court ruled on the motion to dismiss. I don't think -- it Concord had the Concord filed a motion to dismiss. The And in ruling on it, the 10 Court decided several thorny legal questions about the -- 11 whether the indictment had to allege and the government had to 12 prove an actual violation of the election act, the mens rea 13 requirement, and so on and so forth. 14 But the Court has already held in that ruling that the 15 indictment alleges a sufficient theory of criminal liability to 16 allow the case to go to trial. 17 that the indictment alleges a sufficient theory of criminal 18 liability on that narrower interpretation, I don't see how 19 Concord could move to dismiss the indictment based on the 20 broader interpretation. So if the Court already found 21 I understand that the Court could say, when we get to jury 22 instructions or pretrial motions, I do not think the indictment 23 actually alleges this lawful government function and so I'm not 24 going to allow you to make that argument to the jury. 25 than that argument, I don't know what other argument Concord But other Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 14 of 67 14 1 should be allowed to make at this point. 2 THE COURT: All right. And that's what I am confused 3 by. Weren't you concerned, in light of the language in my 4 opinion, that when it came time to look at jury instructions, 5 that that would be my position? 6 MR. KRAVIS: We were not, because again, what the 7 government had understood the Court to be saying in that section 8 of its ruling on the motion to dismiss was that the Court's 9 opinion was focused on the requirements of registration and 10 reporting because those, as the Court will recall from the 11 argument on the motion, government functions were connected to 12 the allegations of deception and concealment. 13 And in particular, the Court had a lot of questions at the 14 oral argument, and the Court asked for supplemental briefing on 15 the issue of how those reporting and registration requirements 16 would affect the government's proof on the issue of -- on the 17 element of deception and concealment that targeted lawful 18 government functions. 19 The government understood the Court's opinion to be focused 20 on that issue, but the government did not understand the Court's 21 opinion to be excluding other lawful government functions that 22 are properly alleged in the indictment. 23 To the extent that the government misread the Court's 24 opinion on this, the government respectfully submits that that 25 interpretation of the indictment is not correct, that language Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 15 of 67 15 1 was dictum, the indictment and the language in the indictment is 2 the controlling document for purposes of deciding what the 3 allegations are in the case. 4 Obviously, if the Court thinks that the opinion had it 5 right and the government has it wrong, then that's the end of 6 the matter, if that's what the Court thinks that the indictment 7 actually says. 8 reasonable interpretation of the language in the indictment, 9 particularly as language is -- that language is to be construed I respectfully submit that that is not a 10 at this stage of the proceedings. 11 that's the end of the matter. 12 13 14 THE COURT: of the matter? If the Court disagrees, then And what if I do disagree? Is it the end Does the government seek to supersede? MR. KRAVIS: Well, I mean, I'm not sure exactly what 15 we could supersede with, because I think the language here is 16 perfectly clear. 17 THE COURT: I wouldn't say "perfectly clear." 18 difficult indictment to follow. 19 MR. KRAVIS: It's a In two different places, the indictment 20 specifically alleges that a lawful function of the Federal 21 Election Commission is to enforce the ban on certain 22 expenditures by foreign nationals. 23 alleges that that lawful government function is connected to the 24 other lawful government function of FEC reporting requirements 25 in paragraph 25. And the indictment further In reporting requirements, (a), the FEC, in Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 16 of 67 16 1 quote, enforcing FECA's limits and prohibitions, including the 2 ban on foreign expenditures. 3 THE COURT: What did you think about the paragraph 4 that I wrote that says paragraph 9 serves as a capsule summary 5 that distills the essence of the conspiracy and frames the 6 allegations that follow? 7 conspiracy charge alleges a conspiracy to impair three specific 8 lawful functions of three specific agencies. 9 the defendants conspired to impair the functions of the FEC, the That paragraph, the heart of the It alleges that 10 DOJ, the Department of State in administering federal 11 requirements for disclosure of foreign involvement in certain 12 domestic activities. 13 MR. KRAVIS: I don't know how to answer the question 14 in any way other than I already have. 15 interpretation of this section of the Court's opinion on the 16 motion to dismiss was that it was focused on the disclosure -- 17 on the registration and reporting requirements because at the 18 motion to dismiss stage the Court had connected those 19 requirements to the acts of concealment and deception and the 20 requirement that the government prove that those acts of 21 concealment and deception were directed, at least in part, 22 towards impairing a lawful government function. 23 The government's To the extent that the government incorrectly interpreted 24 the Court's opinion on this, the government respectfully submits 25 that its interpretation of the indictment is the better Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 17 of 67 17 1 interpretation. That language, it was not central to the 2 Court's holding because the Court's holding went the 3 government's way. It ruled in favor of the government. 4 So the government respectfully submits that the correct 5 interpretation of the indictment is the one that's set forth 6 here and in the bill of particulars and that it is that language 7 that should be controlling for purposes of -- for purposes of 8 jury instructions and for purposes of trial. 9 THE COURT: All right. I'm just curious, Mr. Kravis. 10 If I were to find that the ban on foreign expenditures comes in 11 regardless to prove motive, even if I kept the narrower reading 12 of the indictment, does this really make a difference in terms 13 of the government's theory at trial? 14 I mean, if the defendant and the conspirators are evading 15 the disclosure requirements, in part they are motivated to do so 16 because of the ban on foreign expenditures. 17 make a difference at all in the case that's presented? 18 MR. KRAVIS: Does this really I mean, it's a little bit difficult to 19 answer that in the abstract because I think it might depend on 20 how the Court framed the instructions to the jury. 21 I think, that this makes a difference is because the defense has 22 consistently argued, at least as I understand their argument, 23 that the defendants were not subject to the reporting 24 requirements of the FEC. 25 The reason, And as the Court has noted in its ruling on the motion to Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 18 of 67 18 1 dismiss and its questions at oral argument, the question of 2 whether the government has to prove that the defendants actually 3 violated -- actually were required to file reports with the 4 Federal Election Commission, that the government may have to 5 prove that the defendants were so required at trial in order to 6 establish that the defendants' conduct, deceptive conduct was 7 targeted, at least in part, towards the lawful government 8 function. 9 The government has argued to the contrary. But the reason 10 that I think that that's significant here is because I do not 11 believe that the defense has ever argued that the defendants are 12 not subject to the foreign expenditure ban. 13 extent that the Court were to rule that the government has to 14 prove that the defendants actually violated some portion of the 15 election act in order to establish criminal liability, which 16 again the government has consistently argued is not the case -- 17 THE COURT: And so to the I have made clear you don't have to prove 18 the violation. 19 But what I have said is, as a practical matter, in order to -- 20 an evidentiary matter, in order to show that the intent of the 21 conspiracy was to defraud the United States, you may need to 22 show that they had a legal duty. 23 You don't have to prove a willful violation. And you've told me in the briefing on the motion to dismiss 24 that members of this conspiracy did have a legal duty to report 25 to the FEC and the Department of Justice; correct? Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 19 of 67 19 1 2 MR. KRAVIS: Correct. And that is alleged in the indictment. 3 THE COURT: And that remains true; correct? I 4 understand the government says we don't have to prove that, but 5 you have represented that you can and will prove that. 6 MR. KRAVIS: 7 THE COURT: 8 MR. KRAVIS: 9 Yes. All right. My point is just that the government can and will also prove that the defendants were prohibited, 10 substantively prohibited from making certain expenditures that 11 they made in connection with the 2016 presidential election. 12 So to the extent that an actual, not willful, but an actual 13 violation of the requirements of the election act is necessary 14 to establish criminal liability, that is another area in which 15 the government can show such a violation. 16 THE COURT: All right. So the legal challenge on that 17 theory that you interfered with the FEC's enforcement of the ban 18 on foreign expenditures, all right, that legal theory is -- are 19 there cases in which -- let's take ATF, for example. 20 enforces the ban on felons not possessing firearms, for example; 21 right? 22 MR. KRAVIS: 23 THE COURT: ATF Yes. So the government's position is you could 24 theoretically allege a 371 conspiracy to defraud the ATF if you 25 have a conspiracy with a bunch of people who are felons and have Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 20 of 67 20 1 firearms? 2 that provision? 3 They're interfering with the ATF's ability to enforce MR. KRAVIS: Well, it's not -- the element of the 4 defraud clause conspiracy, to establish a defraud clause 5 conspiracy, it's not sufficient to show that you were engaged in 6 the prohibited conduct. 7 and concealment that were -- 8 9 THE COURT: You also have to show acts of deception Right. They hid things. right now with what the facts are. 10 deception. 11 government's view? 12 I can't come up But you have acts of And that would be a viable legal theory, in the MR. KRAVIS: Yes; yes. It's just like the IRS in the 13 more traditional Klein conspiracy, which is that people have 14 obligations, obligations to -- they have obligations under the 15 tax code. 16 deception that are at least in part directed towards impairing 17 the IRS's functions of enforcing the tax code, you are engaged 18 in a conspiracy to defraud the United States. 19 whether you violated the tax code willfully or otherwise or not. 20 The crime is the acts of deception and concealment that are 21 directed, at least in part, towards the function of the 22 government agency. 23 And if you engage in acts of concealment and And that's true Here, the indictment alleges that there are several FEC 24 functions on the table, one of which is the reporting 25 requirement for certain expenditures, and the other is the flat Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 21 of 67 21 1 ban on certain expenditures by foreign nationals. 2 indictment alleges, and it's true, that those lawful government 3 functions are related to one another in the sense that the 4 reporting requirements are intended to help enforce the ban on 5 certain kinds of expenditures. 6 deception that are directed towards interfering with the FEC's 7 ability to enforce those requirements, that is a conspiracy to 8 defraud the United States. 9 10 THE COURT: And acts of concealment and All right. Let me hear from Mr. Dubelier on this. 11 MR. KRAVIS: 12 THE COURT: 13 The Thank you, Your Honor. All right. Mr. Dubelier, what is your position on whether the government's position here is correct? 14 MR. DUBELIER: I don't think they allege it in the 15 indictment. 16 the indictment does it say that the defendants here violated the 17 foreign national ban on expenditures. 18 we know why they don't allege it. 19 What they did was regurgitate the law. THE COURT: Nowhere in They don't allege it, and Well, they don't allege a substantive 20 violation. 21 fairly allege that this was one of the objects or functions, 22 rather, of the FEC? 23 But to what extent in their 371 charge do they MR. DUBELIER: They don't. Not only do they not 24 allege it in the indictment, which is what we have consistently 25 argued from the very beginning, and we know why they don't, and Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 22 of 67 22 1 it's transparently clear they have no proof of knowledge or 2 willfulness. 3 4 THE COURT: I know. But I have ruled on that. I have ruled that they don't have to show knowledge of the law. 5 MR. DUBELIER: I understand that, Your Honor. But 6 this is about the third or fourth time where we have been 7 through this exercise with the government where they say 8 something, you try and explain to them your understanding of it, 9 and they tell you your understanding is wrong. And that's what 10 keeps occurring here, and it goes to the fundamental problem 11 with the indictment that 18 months later we still can't even 12 figure out what we are charged with. 13 Let me go to the heart of the question you're asking, and 14 that is, the FEC doesn't enforce the foreign national ban. 15 a crime. 16 17 18 It's So if a foreign national -THE COURT: But don't they bring it to the attention of the FBI or someone else? MR. DUBELIER: Well, only if the FEC knows about it. 19 How would they know about it as opposed to the FBI or -- the FEC 20 is not a law enforcement agency. 21 I get it, I think, where you are going, and you are absolutely 22 right on this, is if you accept this theory of liability, any 23 time anyone commits a crime, they can also be charged with 371 24 defrauding the government. 25 You used the example of ATF. Let's say they robbed a bank and wore a mask and it was a Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 23 of 67 23 1 federally insured bank. 2 ability of the Department of Justice to determine who the bank 3 robber was. 4 there. 5 Well, they have interfered with the So you could take any single case and put it in The FEC is not a law enforcement agency. They have no 6 ability to stop a foreign national from making a prohibited 7 contribution. 8 alleged in here, it's not alleged in here. 9 extent they alleged it, it's not a proper function of the FEC. 10 They just don't. THE COURT: So this notion that that is And even to the So I take it that if I were to reconsider 11 it -- and I haven't decided whether I will reconsider my 12 interpretation. 13 to challenge that legal theory? But if I were, you would like the opportunity 14 MR. DUBELIER: 15 THE COURT: 16 Absolutely. And you would like to do it through a motion to dismiss or through jury instructions? 17 MR. DUBELIER: Your Honor, I think we would have to 18 think about this. 19 You have ruled on this already, but it's not going to stop me 20 from bringing it up again. 21 question of what instruction was given to the grand jury. 22 months later you and I can't figure out what the indictment 23 says, what was the grand jury instructed on? 24 indict? 25 Here is the complexity of this entire thing. And that is, this all begs the If 18 What did they What did they indict? THE COURT: Well, I think it's clear, based on what Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 24 of 67 24 1 Mr. Kravis said, that two theories were presented, that there 2 are two functions that were impaired. 3 MR. DUBELIER: 4 THE COURT: 5 MR. DUBELIER: And if that makes -- I'm sorry, Your Honor. No. If I could find an unlimited amount of 6 money to bet on this, if you looked at the grand jury 7 instructions, none of this was discussed with the grand jury, 8 none of it. 9 whether or not this indictment is properly crafted, whether or 10 not it charges a crime, none of this was shared with the grand 11 jury. None of the issues that we have raised as to 12 I think a worst-case scenario would be they were given an 13 incorrect legal instruction, but I think the second worst-case 14 scenario is they were given none. 15 And so -- and the critical thing here in terms of 16 interpreting the indictment is it always goes back to is this 17 consistent with what the grand jury did, because neither you nor 18 Mr. Kravis has the ability after the fact to change what the 19 indictment says. 20 And again, we are 18 months into this. You looked at this 21 extensively. We argued this from all angles with the motion to 22 dismiss. 23 government is saying you misunderstood what the indictment said. 24 I mean, that's just -- I understand they're saying it. 25 think they're right. And now it comes out 18 months later that the And I But in terms of wanting to make that Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 25 of 67 25 1 argument, that's just staggering that we are this far into this 2 and it's not sorted out yet. 3 And I don't think you can correct this problem with a jury 4 instruction. Again, it goes to if there's any defect or 5 potential defect with the indictment, it cannot be cured in any 6 way other than going back to the grand jury. 7 the motion to dismiss. 8 can't fix this with a jury instruction. 9 back to the grand jury, if that's what -- if you find that's not You said that in I mean, that's just hornbook law. We It would have to go 10 alleged and they want to allege that, they have to go back to 11 the grand jury. 12 THE COURT: 13 theory if I were to reconsider? 14 So you would seek to challenge this legal MR. DUBELIER: I think we already have, and I think 15 your order basically rejected it in that you laid out what 16 you -- they're still in denial, Your Honor, about what you said 17 they had to prove. 18 portions of what you say and feed it back. 19 They are in denial on this. They take What is so interesting about the opposition they filed on 20 this motion for bill of particulars, they kept repeating for 21 three or four pages what they argued, what they argued, what 22 they argued. 23 The way you described the knowledge requirement, even absent 24 willfulness -- 25 They never got to the substance of what you said. THE COURT: But this is -- I made clear in the opinion Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 26 of 67 26 1 on the motion to dismiss and, I think, in subsequent orders, 2 maybe on the bill of particulars, that they may have a proof 3 problem at trial. 4 indictment. 5 don't have to prove knowledge of the underlying law. 6 don't. 7 But as a matter of law, I have upheld the And they don't have to prove willfulness. MR. DUBELIER: They They Your Honor, first of all, I will say, 8 there's intervening case law at the Supreme Court on the issue 9 of what "knowledge" means, and I think it is arguably 10 inconsistent with what you said "knowledge" meant for purposes 11 of this case. 12 law. 13 And that's not your fault. It's more recent case But more importantly, you found they could go forward on 14 what you described they could go forward on. 15 on ruling on the motion to dismiss of the indictment was, what 16 is charged here and is it sufficient. 17 order what you believed was charged, and you said it's 18 sufficient to go forward on your interpretation of the 19 indictment. 20 That is, your role And you stated in your Well, your interpretation didn't include what they now say 21 the indictment alleges, and that's a fundamental problem for 22 them. 23 what are they going to argue at trial. 24 from that, because it's not alleged in the indictment. 25 It's not a question of fixing it in a jury instruction or It's are they precluded And again, even to the extent they were to allege it, there Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 27 of 67 27 1 is no enforcement function at the FEC with respect to the 2 foreign national ban. 3 All they can do is they can see it. They have no authority to do anything. 4 THE COURT: But they can refer matters. 5 MR. DUBELIER: Well, I mean, that would be like 6 saying, okay, this also interfered with the operation of the FBI 7 because the FBI couldn't figure out who was making 8 contributions, and it interfered with the operation of the 9 Department of Justice because they couldn't see who was making 10 foreign contributions, and so they couldn't enforce their 11 enforcement authority to indict it. 12 It's endless. And we have argued this in earlier pleadings, Your Honor. 13 That's the slippery slope with how they've gone with this 371 14 defraud conspiracy, for the sole reason of removing any 15 knowledge or willfulness requirement, and there is no case law 16 to go to to sort this out. 17 in the history of our country. 18 which goes to critical issues, Your Honor, with respect to due 19 process as well, and that is, we are entitled to notice of what 20 we are charged with, and we can't figure it out, because every 21 time they get up and start talking, it moves, and I don't know 22 what it is. 23 24 25 THE COURT: This is a one-of-a-kind indictment There is nothing like this, All right. Let's move on to the arguments you raise in your motion for supplemental bill of particulars. First of all, your questions on the indictment failing as a Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 28 of 67 28 1 matter of law, I am having a hard time following your arguments 2 that the indictment may fail as a matter of law depending on who 3 was required to register with DOJ or report to the FEC 4 expenditures. 5 number of your other arguments aren't evidentiary in nature. 6 All right? 7 I'm also having a hard time understanding why a So let's start with the argument on independent 8 expenditures. 9 that constitute express advocacy only marginally clear the $250 10 You suggest that the independent expenditures threshold; right? 11 MR. DUBELIER: 12 THE COURT: 13 MR. DUBELIER: 14 THE COURT: 15 Uh-huh; yes. But they marginally clear it. Well, maybe, maybe not. That's an evidentiary issue at trial, and I have to take the indictment as alleged. 16 MR. DUBELIER: Well, you have to take the indictment 17 as alleged, but also, there's discovery that's occurred in the 18 case. 19 THE COURT: But I don't look into discovery. 20 MR. DUBELIER: Well, no, I think it's absolutely clear 21 that if the facts allege -- that they don't dispute, by the way, 22 and that is, we allege facts based on evidence in our 23 supplemental -- or in our motion for a second bill of 24 particulars. 25 didn't comment on it. We allege that. They don't dispute it. They They didn't say anything about it. Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 29 of 67 29 1 So there was a question about whether those facts could 2 cause violations of these laws. 3 is purely a legal question, not even a factual question. 4 where the complexity arises here, Your Honor. 5 6 THE COURT: And it could be something that But I don't understand. That's If you've said it's over 250 -- 7 MR. DUBELIER: I can explain it, because I'm trying to 8 figure out -- I'm trying to figure out how they're going to try 9 this case, and that's my job. 10 11 They don't tell me. Okay? I have to try and figure it out. But in a worst-case scenario, if they produced evidence, 12 which they have not to date -- 13 THE COURT: 14 Wait. because my hip is hurting. 15 16 MR. DUBELIER: intimating me, though. THE COURT: 18 MR. DUBELIER: you pain. 20 21 24 25 I have to stand up Just ignore me. Oh, sure. No problem. Now you're I will sit down in a moment. Okay. At least it wasn't me causing It was something -THE COURT: Both. (Laughter.) 22 23 Just ignore me. Can I stand on a box or something? 17 19 I have to figure that out. MR. DUBELIER: saying? All right. Where was I? What was I I don't even remember. THE COURT: to try this case. You have to figure out how they're going Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 30 of 67 30 1 MR. DUBELIER: Oh, yeah, and that's my job, and I 2 understand that. But they have not given us any information 3 that would allow them to establish that anything that was done 4 falls within the restrictions. 5 for a moment and not look at the others but let's look at FEC. 6 The Department of Justice and the grand jury don't have 7 authority to decide whether or not something qualifies as an 8 independent expenditure that is prohibited for purposes of a 9 foreign national making it. And that is, let's just take FEC They don't. The only people who 10 can make that determination is the FEC, and they haven't done 11 it. 12 they've taken any of this material to the FEC and said you've 13 got to rule on this, is this an expenditure that is prohibited 14 by a foreign national or would it have required some type of 15 disclosure because it meets a certain threshold. 16 17 18 And they haven't given us any discovery which suggests that There's just no evidence. All they did, Your Honor, in discovery was dump a bunch of social media stuff on us. And so are we dealing with -- are they going to have an 19 expert witness who is going to testify as a matter of law? 20 you going to decide as a matter of law and tell the jury whether 21 a particular expenditure was prohibited because it fits within 22 this narrow definition of what an independent expenditure is? 23 24 25 THE COURT: Are But presumably they have that evidence, whether it's by testimony or otherwise. MR. DUBELIER: Your Honor, they only have about Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 31 of 67 31 1 another two weeks to give it to us or three weeks. 2 at this for 18 months. 3 have to produce discovery. 4 THE COURT: We have been They have a deadline now of when they But they've given you a bunch of 5 expenditures, if you will; right? 6 MR. DUBELIER: 7 THE COURT: Right. And why isn't that adequate if ultimately 8 you all have agreed on this -- I haven't accepted it, but you 9 all have agreed on when notice of experts are provided and the 10 reports and the like. 11 you, can I say as a matter of law this indictment fails? 12 Why now, based upon what they've given MR. DUBELIER: I think first you will have to 13 determine -- I will be candid with you. 14 this question as well. 15 expenditure that we all know they have alleged in the indictment 16 and we have the documents that relate to it, if you were to look 17 at that or I look at it or Mr. Kravis looks at it, is it a 18 purely question of law as to whether or not that fits into the 19 type of expenditure that has to be disclosed, or is it a mixed 20 question of fact and law? 21 but you can certainly make the argument that it is purely a 22 question of law. 23 I'm struggling with And that is, if you look at a particular I think you can argue it either way, So then who is going to decide? 24 THE COURT: But why is it purely a question of law? 25 MR. DUBELIER: Because you can see the piece of paper Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 32 of 67 32 1 and see what it says at the outset. 2 3 THE COURT: You've told me they've got over 250 already. 4 MR. DUBELIER: 5 THE COURT: 6 7 I'm sorry? You've told me they've given you documentation that shows that they spent over 250. MR. DUBELIER: Well, maybe cumulatively, but not with 8 respect to any particular one. 9 THE COURT: 10 11 12 13 What do you mean "with respect to any particular one"? MR. DUBELIER: Ad, that is, what was spent on any particular ad. THE COURT: And you think as a matter of law, during 14 the course of the year, you can't add together different 15 expenditures to get to that 250? 16 think it's got to be one expenditure has to be over 250? 17 that an open question? 18 MR. DUBELIER: Isn't that the norm, or you Is Remember here, they've not alleged IRA 19 is a legal thing. 20 people allegedly purchasing the ads are people. 21 individuals who go and purchase an ad. 22 different people who purchased 20 different ads, can you 23 aggregate those because they sat in the same room or they had a 24 computer system that was hooked up? 25 They just call it an organization. I mean, I don't know that you can. The They are just So if you have 20 I don't know what the Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 33 of 67 33 1 2 FEC would say with respect to that. One of the fundamental problems here, I think as Your Honor 3 knows, with respect to the FEC, right now they can't say 4 anything. 5 now and said, okay, here are the ads we allege -- first of all, 6 if they didn't do it before they indicted the case, how could 7 they possibly have instructed the grand jury as to what 8 particular ad would fall within or create a reporting 9 requirement. There isn't even a quorum. If they went to the FEC So if they haven't done it already -- 10 THE COURT: How do you know they didn't? 11 MR. DUBELIER: Well, I think they would have given it 12 to us by now, or they would have certainly argued it every time 13 we brought up this issue. 14 before you have the lab test. 15 THE COURT: It's like indicting a drug case You can't do that. Again, my problem is I have to take the 16 indictment as true. 17 at trial. 18 I've got to decide whether it fails as a matter of law, and to 19 date, I have not found that it does. 20 These proof problems may be a big problem But I've got a piece of paper in front of me, and MR. DUBELIER: If I could preview this for you, Your 21 Honor, maybe we are arguing about something we don't need to. 22 Every time I am too transparent here I get myself in trouble 23 because I wind up with another deadline, but I'm going to do it 24 anyway. 25 THE COURT: You wind up what? Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 34 of 67 34 1 MR. DUBELIER: With another deadline. And I am not 2 being critical, but last time I previewed something for you, you 3 put a deadline on me. 4 want to be transparent with you. 5 I'm going to go ahead anyway because I Regardless of how you rule on the motion for bill of 6 particulars, we are going to file another motion to dismiss, and 7 it's not on what we are discussing right now. 8 9 10 11 12 13 THE COURT: I thought earlier you said that if I denied the motion for bill of particulars, you wouldn't file a motion to dismiss. MR. DUBELIER: Right, but you didn't make me raise my hand and give the Boy Scout oath or anything. THE COURT: But I'm learning with you, Mr. Dubelier, 14 that I have to lock you down in every potential way with no 15 ambiguity on any aspect of our discussions or -- 16 MR. DUBELIER: I think -- we could go back to the 17 transcript, but I think what I said was, if you granted it, we 18 would file another motion to dismiss. 19 you denied it, we wouldn't. 20 THE COURT: 21 MR. DUBELIER: 22 THE COURT: I'm not sure I said if No, you said if -Did I? -- you deny it, I'm not filing it. 23 anyway, go ahead. 24 are going to be on a short leash, and that was going to be 25 regardless of what you said here today. But I will give you another opportunity, but you I want all of these Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 35 of 67 35 1 motions resolved before the end of the year, all of them. 2 MR. DUBELIER: 3 THE COURT: Okay. All -- Not all of them, but any motion to 4 dismiss, motion to suppress, all of those sorts of things, and 5 we will get to the motions in limine and other things later. 6 But -- 7 MR. DUBELIER: Your Honor, I think Mr. Kravis and I 8 are in violent agreement with on you that. We want them 9 resolved, too, because some of this stuff is going to 10 dramatically impact what this trial, if it ever occurs, is going 11 to look like. 12 13 THE COURT: MR. DUBELIER: THE COURT: 17 MR. DUBELIER: 18 THE COURT: 20 Oh, my new argument on the motion to dismiss? 16 19 So preview your argument for me. 14 15 All right. Your new argument. I would rather not. Oh, okay. Since I said I'm going to allow you to file it now, you're -MR. DUBELIER: Well, no, no. Even if you said I 21 wasn't allowed to file it, I would file it, and you would deny 22 it as out of time, but I would still file it, with all respect. 23 THE COURT: All right. So you don't think it will be 24 useful here for this argument for you to help me understand why 25 as a matter of law -- Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 36 of 67 36 1 MR. DUBELIER: I think I hinted at it, and that is, 2 there's two prongs to it. 3 there is intervening case law at the Supreme Court with respect 4 to knowledge. 5 question that you said no willfulness, they don't have to prove 6 willfulness, but they have to prove knowledge. 7 described -- 8 One prong is, it's our position that And so -- and you found in this case, there's no THE COURT: And the way you No, what I said is -- the problem is, you 9 keep seizing on the fact that I said in order to show intent to 10 defraud the United States, as a practical matter, they may need 11 to show that they had a legal duty to file reports. 12 MR. DUBELIER: No, I'm talking about a different 13 issue, Your Honor. They allege knowledge in the indictment, and 14 you defined what you interpreted "knowledge" to be, not -- 15 THE COURT: 16 MR. DUBELIER: 17 I defined this where? In your order denying the motion to dismiss. 18 THE COURT: All right. 19 MR. DUBELIER: And so there's discussion of what your 20 interpretation of "knowledge" is in that order, and there is an 21 argument. 22 argument to be made that that standard that you set out, the bar 23 on that may have raised by intervening case law. 24 25 And I'm not saying we prevail, but there's an THE COURT: down? All right. And when did this case come Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 37 of 67 37 1 MR. DUBELIER: 2 THE COURT: August or July of 2019. It's Rehaif. So what are you waiting for on filing this 3 motion? If you think that my earlier opinion is now incorrect 4 based on subsequent Supreme Court case law, I would hope you 5 would bring that to my attention immediately. 6 MR. DUBELIER: 7 out a month or two ago. 8 speak English. 9 trying to come up with stuff. 10 Your Honor, I have a case that comes I have a foreign client who doesn't I'm just not a mad scientist sitting up there THE COURT: Sometimes I am, I guess. All right. Let me move on to, you say it 11 is impossible for Concord to conduct its investigation without 12 knowing precisely who the government intends to establish was 13 required to report to the FEC. 14 But I addressed this argument in the first round on your 15 first motion for bill of particulars. 16 granted in part your motion, you now have the disclosure 17 requirements clearly stated. 18 individuals who were supposed to file these reports or register 19 with the Department of Justice. 20 21 22 You now have the full universe of Why can't you determine from that information who may have had the reporting duties? MR. DUBELIER: 23 particulars. 24 couldn't figure it out. 25 You now have -- because I I tried to in our motion for bill of I set out why -- all possible options and why we Remember, Your Honor, I think it is important, we are not Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 38 of 67 38 1 all one class of defendant here. 2 individuals. 3 Concord. 4 okay, there's 25 people at IRA or however many are indicted in 5 this case, 10 people indicted, tell me which one at IRA had this 6 obligation. 7 And that is, you have You have this IRA organization. And you have So this is not like I'm coming to you and saying, THE COURT: But we're talking now about -- what's the 8 total number? 9 charged in the indictment and the unindicted co-conspirators, 10 We're talking about -- with the individuals we're talking about how many? 11 MR. DUBELIER: 12 THE COURT: 13 And you have documentation that shows these expenditures? 14 MR. DUBELIER: 15 THE COURT: 16 20 something. We do. Why can't you talk to these people and say, did you do this? 17 MR. DUBELIER: 18 THE COURT: 19 MR. DUBELIER: What do you mean? Did they do what? Did they spend this money? I don't really think that matters, 20 whether or not they spent the money. 21 matters. 22 THE COURT: 23 MR. DUBELIER: I don't think that Why doesn't it matter? Because the key here is figuring out, 24 for purposes of defending the case, who is the government going 25 to come to court and say was required to file this. If you Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 39 of 67 39 1 have -- I don't know what the a/k/a's are in this case. 2 let's just say Boris Smith. 3 Boris is alleged in this indictment to be a part of this 4 conspiracy. 5 of rubles -- which by the way, it was always in rubles, never in 6 dollars. 7 purchased in rubles. 8 Russia, and they took the money, and they posted the ads anyway. 9 Okay? So That's a Russian name. And let's say he bought one ad and spent X number Facebook knew. Instagram knew. All the ads were They knew they were coming from servers in So let's say he posted an ad. Whether or not he spent the 10 money and posted an ad doesn't matter to me. 11 What matters to me in terms of defending the case is, did that 12 cause, did that put an obligation on him to report that ad to 13 the FEC, report that expenditure to the FEC. 14 trying -- 15 THE COURT: It just doesn't. That's what I'm According to the government's theory, 16 anybody who is expending more than 250 on express advocacy is 17 required to report. 18 That's what the law, they state, requires. MR. DUBELIER: I think it is more complicated than 19 that, Your Honor, because you have to determine whether or not 20 the ad itself falls within this very narrow category of what the 21 FEC requires reporting for. 22 And look, the government has not disputed this. We've been 23 through everything they've given us. You're talking about 2,500 24 bucks, not hundreds of thousands and millions like it has been 25 reported in the media. Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 40 of 67 40 1 2 THE COURT: But it's a 250 threshold. are working with here. 3 MR. DUBELIER: 4 THE COURT: 5 MR. DUBELIER: 6 THE COURT: 7 MR. DUBELIER: 8 THE COURT: 9 10 $250, yeah, for a single -- For a single? Yeah, for a single. Not cumulative? Right. There has to be one expenditure, in your view, that's 250 or above? MR. DUBELIER: Oh, no, you can accumulate under 11 certain circumstances, but it gets complicated. 12 into the regulations and figure it out. 13 THE COURT: 14 alleged they can do. 15 That's what we All right. MR. DUBELIER: You have to go But that's what they've Your Honor, I understand what you are 16 saying, but let me flip the question for a second. 17 isn't it exculpatory, isn't it Brady material if Concord was not 18 required to register or file? 19 Putting aside whether we get it through a bill of particulars, 20 they can't argue with a straight face that if Concord, my 21 client -- which remember, didn't post anything. 22 was not required to register under FARA or file under FERA, the 23 way this indictment is structured, that is exculpatory, and they 24 have to tell us. 25 And that is, It would seem to me it is. If my client Now, that doesn't get me the same answer, and that is, I Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 41 of 67 41 1 have to flip the question. 2 got to answer the question. 3 THE COURT: But one way or the other, they've I've got this motion for bill of 4 particulars right now. So I want to focus on that. 5 a Brady notice that's due soon; right? 6 MR. DUBELIER: 7 THE COURT: Fifth Amendment defense. 9 why you can't -- 10 11 12 Uh-huh. All right. 8 MR. DUBELIER: They've got You also raise a possible Again, why can't -- I don't understand Your Honor, if you would excuse me. Yes. THE COURT: Again, I don't understand why you can't 13 evaluate that defense with the information you already have. 14 Putting aside the merits of your argument, which based on what 15 you've argued here I don't find particularly compelling, but 16 even if I did, aren't those appropriately addressed through a 17 motion to dismiss or a challenge to the jury instructions rather 18 than a motion for bill of particulars to say who did what? 19 MR. DUBELIER: Your Honor, I don't think it's fair -- 20 the government did this. I do not think it's fair to 21 characterize what we have asked for as who did what. 22 already said we can't have that. 23 government framed this, just another way of saying who committed 24 each overt act. 25 they don't have to tell us who committed each overt act. You've So I'm not asking for, as the This has nothing do with overt acts. You said That's Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 42 of 67 42 1 fine. 2 3 THE COURT: You want to know who had the reporting requirement. 4 MR. DUBELIER: 5 lawyer cannot even figure it out. 6 the reporting and the registration requirements. 7 8 THE COURT: So you've got the legal provisions, and MR. DUBELIER: 10 THE COURT: 11 MR. DUBELIER: THE COURT: advocacy. 15 16 Correct. And you can't figure out what exceeds 250? Your Honor, that's not the issue. You're simplifying this in a way that you can't simplify it. 13 14 I can't figure out who had you've got the documents that show the expenditures. 9 12 Because, Your Honor, I as my client's So you have to look at was it express I get that. But you can't do that as a lawyer? MR. DUBELIER: No. You need to know who had -- look -- 17 THE COURT: Anyone has the duty. 18 MR. DUBELIER: Your Honor, it's inconceivable to me, 19 inconceivable that the government wouldn't just tell us the 20 answer to this. 21 THE COURT: I get that you want it, but I don't 22 understand why you can't try to figure it out. 23 confirmation. 24 25 MR. DUBELIER: You want I can try, and then we're going to start a trial, and maybe I am wrong because they come up with Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 43 of 67 43 1 some other way they're going to spin up the thing and say we did 2 something wrong. 3 Why wouldn't they give us this? 4 5 THE COURT: But they have given you the documentation that shows the expenditures. 6 It's no harm. MR. DUBELIER: You have it. So that, then, answers my question. 7 You're saying they gave it to me already. 8 to them of simply telling us who. 9 10 THE COURT: Then what is the harm Who had an obligation -- I don't know. I don't know that they're obligated at this stage. 11 MR. DUBELIER: 12 THE COURT: Your Honor, I will tell you -- This was happening from Russia. So maybe 13 they don't know the exact person but they know where it's coming 14 from. 15 I don't know. MR. DUBELIER: Oh, no, they've alleged who did it. 16 That's the way they allege it in the indictment. 17 they don't want to tell. 18 indict the case. 19 job I have ever seen. 20 They don't know either. I know why They didn't Mr. Kravis is the victim of the biggest dump THE COURT: I'm sure the Special Counsel's Office is 21 communicating with the U.S. Attorney's Office to prosecute this 22 case. 23 MR. DUBELIER: But the danger created here, though, 24 Your Honor, and Mr. Kravis knows it, he's a good lawyer, he 25 can't come in here and make arguments knowing what those grand Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 44 of 67 44 1 jury transcripts say and create problems for himself, because 2 that may lead to you wanting to look at whatever instruction was 3 given to the grand jury. 4 So again, if it's so obvious, if that's the argument -- and 5 the government, by the way, doesn't make that argument. The 6 Court is making it. 7 opposition, they should already know, we've already given them 8 the materials, they should figure it out for themselves. 9 what they have said is, we don't want to tell, and we will tell The government never said in their 10 some time during trial when it comes out in the evidence. 11 that's just -- Your Honor, it's just not right. 12 THE COURT: All right. No, And What about your arguments 13 about who could as a legal matter be required to register under 14 FARA? 15 a moment. 16 Let's put aside the identity of the foreign principal for Let's talk about the agents. Aren't all the individuals and entities that the 17 government's disclosed either through the indictment or the bill 18 of particulars foreign? 19 MR. DUBELIER: 20 21 22 23 Aren't they all foreign? They allege that. I don't know the answer to that question. THE COURT: All right. Well, they've alleged that, so I think we have to assume that that's true. MR. DUBELIER: Okay. Your Honor, just so you know I'm 24 not playing here, we could be dealing with people who have a 25 dual nationality. I don't know the answer to that. They're not Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 45 of 67 45 1 my clients. 2 THE COURT: All right. But you make the legal 3 argument that you can't violate FARA by doing stuff from Russia; 4 right? 5 Isn't that one of your arguments? MR. DUBELIER: Well, I think that simplifies it. I 6 think it's a little more complicated than that. 7 can tell you that we can't find a FARA case ever where all the 8 activity occurred outside the United States, because that 9 contradicts FARA inherently. 10 11 THE COURT: And that is, I And as a matter of law, you don't believe that the activity could occur outside as a matter of law? 12 MR. DUBELIER: 13 THE COURT: As a matter of law, yes. But again, the who doesn't matter here. 14 This is an argument you can make, you can assume, based on the 15 indictment. 16 They're all alleged to be foreign, that this is -- MR. DUBELIER: Your Honor, the reason why I say I 17 don't think that's right is, again, the argument moves depending 18 upon which people fall into the specific categories. 19 20 THE COURT: The indictment also alleges there were people here in the United States spending money; right? 21 MR. DUBELIER: Let's put aside for a second the three 22 people who came on vacation here that the government has made a 23 big deal about on the State Department thing. 24 aside. 25 that even if we knocked out all the rest of this stuff, your We will put that I think most of the -- I've basically conceded to you Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 46 of 67 46 1 earlier ruling would let that element go forward. 2 going to reargue that. 3 THE COURT: 4 MR. DUBELIER: So I'm not "That element" being? The State Department visa thing. We 5 pointed out early and you recognized that there is no evidence 6 that Concord had anything at all to do with that. 7 going to have to connect us to that somehow. 8 Department thing is different. 9 FECA. 10 So they are But the State It's different than FARA and And that is, again, regardless of what they said in their 11 opposition, this is ultimately a crime of omission. 12 well, it's not an omission, we joined the conspiracy. 13 we joined the conspiracy, we joined it to omit something. 14 the end of the day, it is an omission as to whether or not there 15 was a filing. 16 you have allegedly, and they're going to have to prove it, 17 affirmative representations to a visa officer that were wrong, 18 just two different categories of stuff. 19 THE COURT: All right. At So Mr. Dubelier, you've alluded to this forthcoming motion to dismiss. 21 sure I understand. 22 arguments. 23 this indictment? 25 Well, if Totally different from the State Department where 20 24 They say, I want to make You don't have to spell out all the But on what grounds do you seek to move to dismiss MR. DUBELIER: are still working on it. Your Honor, the complexity here is we It's not written yet. We're working Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 47 of 67 47 1 on it. I can tell you that one of them is the Supreme Court 2 case and whether or not -- the way in which "knowledge" was 3 interpreted at the Supreme Court. 4 again, but we are still working on it. 5 I are going to have to make strategic decisions as to which we 6 want to argue, and that's not done yet. 7 THE COURT: Okay. 8 MR. DUBELIER: 9 THE COURT: There's another element to it In fact, Mr. Martin and So time is of the essence. I understand. And I am going to order the government to 10 file its motion to reconsider my ruling, and I am going to order 11 them to do that in short order, and I will make a decision on 12 that very quickly and give you an opportunity to respond on an 13 expedited basis. 14 15 But I am also going to order you to file any motion to dismiss within two weeks. 16 MR. DUBELIER: 17 THE COURT: 18 19 Three, please. Three. That's it. No extensions. That's it. MR. DUBELIER: I understand. At least it gives me the 20 ability to go back and say to the people working on this, okay, 21 it's got to be three weeks. 22 THE COURT: That's it. And this is any further motion 23 to dismiss this indictment absent some -- I can't imagine a 24 reason why you can't bring any further challenge to dismiss the 25 indictment within three weeks of today. All right? Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 48 of 67 48 1 2 MR. DUBELIER: listen? 3 4 THE COURT: No, I know you will try to wiggle out of this, but I want to be really clear, really clear. 5 6 Do I have to say yes, or can I just MR. DUBELIER: Your Honor, that's not fair. I'm not wiggling. 7 THE COURT: Three weeks from today, no matter when I 8 rule on this motion to reconsider -- so you need to assume for 9 purposes of this so that you are prepared and you are not asking 10 for more time, you need to assume that I am going to allow the 11 government to -- that I am going to reconsider my interpretation 12 of the indictment. 13 dismiss assuming that that happens. All right? 14 have the time you need to draft it. So just get started. 15 not. 16 17 So you need to be crafting your motion to I may I'm not prejudging this. MR. DUBELIER: We've started. I only type with two fingers, but I'm fast. 18 THE COURT: 19 motion is before me. 20 I want you to So within three weeks of today, that MR. DUBELIER: Your Honor, the only caveat I have 21 hanging out there, again, is depending upon how you rule on this 22 bill of particulars issue -- 23 24 25 THE COURT: I'm going to rule, I hope, very soon, perhaps even today at the bench. MR. DUBELIER: Okay. We're good with three weeks, Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 49 of 67 49 1 2 then. No sweat. THE COURT: All right. Mr. Kravis? I will allow you 3 to respond to any points that you would like to respond to here. 4 But on the foreign principal issue, I just want to make sure 5 that I am clear on this. 6 Am I correct to assume that the government has already 7 disclosed, either in the indictment or in the bill of 8 particulars that I ordered in the first round of briefing on the 9 motion for bill of particulars, every foreign principal, agent, 10 right, that the government seeks to prove in this case, that 11 they are in that bucket of people? 12 MR. KRAVIS: Well, the bill of particulars sought 13 every -- the identity of every unindicted co-conspirator that 14 the government intended to -- 15 THE COURT: 16 MR. KRAVIS: 17 THE COURT: 18 Rely on at trial? And by that, I mean proof that that's your theory, not call as a witness or anything like that. 19 MR. KRAVIS: 20 THE COURT: 21 -- rely on at trial. Yes. What I wanted in that bucket was I wanted anyone who was required to report to the FEC. 22 MR. KRAVIS: 23 THE COURT: Right. Right? Anyone that was required to 24 register with FARA. And to the extent it wasn't clear to the 25 government, I also want anyone who is the foreign principal, not Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 50 of 67 50 1 just the agent. 2 not include that as well, I'm going to order the government to 3 provide it promptly. 4 5 6 7 So to the extent the bill of particulars did Is that -- you're hesitating, which makes me think that you did not read the order that broadly. MR. KRAVIS: question is yes. 8 THE COURT: 9 MR. KRAVIS: 10 I believe the answer to the Court's THE COURT: That you have? Yes, but I will check. To the extent that that's not complete, 11 again that we have every individual or entity that the 12 government will argue at trial is a foreign agent, is a 13 foreign -- is a principal, or is an individual or entity that 14 was required to make expenditures, reports about expenditures to 15 the FEC, all of those individuals and entities need to be 16 disclosed to the defense. 17 MR. KRAVIS: Very well. We will make the disclosure. 18 The only reason I'm hesitating is because I think those 19 categories are not necessarily all the same thing. 20 THE COURT: No, I know, but your bill of particulars, 21 I didn't order you to delineate which is which, but I did expect 22 that the bucket of individuals and entities that are one of 23 those three things would be revealed to the defense through that 24 bill of particulars, to the extent it's not already in the 25 indictment as a defendant, co-defendant. Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 51 of 67 51 1 You look puzzled. 2 MR. KRAVIS: No, I'm not puzzled. The only reason I'm 3 hesitating is because the category -- it is possible that the 4 category of indicted and unindicted co-conspirators and the 5 category of people who may have been required to report and 6 register may not be -- those may not be the same thing. 7 8 But we will interpret the Court's order broadly and provide the defense with any additional information as necessary. 9 THE COURT: Okay. But to the extent you did interpret 10 it narrowly, you would interpret it narrowly just to -- I mean, 11 I ordered you to provide the FARA and the FECA requirements; 12 right? 13 MR. KRAVIS: 14 THE COURT: 15 MR. KRAVIS: 17 THE COURT: 19 To list those, the statutory provisions, right, the code and regulations, which you did do; right? 16 18 Yes. Yes. And then I thought I ordered the individuals connected with those activities to be disclosed. MR. KRAVIS: It's not exactly the same thing. Just to 20 give an example, it is possible for a conspirator to cause 21 someone to violate FEC or FARA reporting requirements without 22 that person being a member of the conspiracy. 23 two categories are not exactly the same. 24 25 That's why the But I understand that the Court -- that the Court is interpreting that broadly. So we will go back and look and make Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 52 of 67 52 1 any additional disclosures to the defense that are necessary. 2 THE COURT: 3 MR. KRAVIS: And can you do that by Friday? Yes, Your Honor, we can. I'm sorry. 4 Actually, could I ask for an additional week on that? 5 to be out of the office for a couple of days on a personal 6 matter this week, and I would like to make sure I have the time 7 to devote to it. 8 THE COURT: 9 MR. KRAVIS: 10 THE COURT: 12 MR. KRAVIS: 13 THE COURT: 15 So you are asking for -A week from Friday rather than this Friday, the 27th. 11 14 I'm going The 27th, all right. Thank you, Your Honor. Okay. Mr. Kravis, any points you want to make in response to Mr. Dubelier's argument? MR. KRAVIS: I want to make two points very briefly. 16 The first relates to the motion for a second bill of particulars 17 itself, and the second relates sort of more broadly to how the 18 government alleges and proves lawful government functions in 19 this context. 20 On the first point, I think Mr. Dubelier's arguments make 21 clear that Concord's second motion for a bill of particulars is 22 really nothing more than a challenge to the various legal 23 theories that underlie the indictment in this case. 24 cases cited in the government's opposition made clear, further 25 refinement of the government's legal theory is not a proper And as the Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 53 of 67 53 1 2 basis for a bill of particulars. And so to the extent Mr. Dubelier argues that he does not 3 understand the legal theory, the theory of liability that's 4 articulated in the indictment, better understanding the 5 government's legal theory is not a sound basis for a request for 6 a bill of particulars. 7 clear that what Concord really has in mind here is further 8 challenges to the sufficiency of the indictment, not really a 9 request for a further bill of particulars. 10 So I think Mr. Dubelier's argument makes The second point I wanted to make was, Mr. Dubelier, when 11 he was up here, was arguing that the government was somehow 12 required to go to the FEC to get an opinion from them before 13 proceeding with the case. 14 action works. 15 to dismiss, the government cited numerous cases in which the 16 courts have upheld convictions of defendants for interfering 17 with regulatory functions of other government agencies. 18 the First Circuit case about the Department of Housing and Urban 19 Development. 20 And that is not how a criminal 371 In the context of the defendant's original motion There's There are other examples. The government is not required in those cases to seek some 21 sort of opinion from the regulatory agency about how the 22 regulations apply to the defendant's conduct. 23 a criminal action, what the government is required to prove is 24 that the defendants engaged in concealment and deception that 25 was aimed, at least in part, at preventing the regulatory agency In the context of Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 54 of 67 54 1 2 from performing one or more lawful functions. So what the FEC thinks about whether any particular 3 expenditure here may have violated the election act is not 4 relevant for the purposes of establishing criminal liability. 5 Obviously, the jury will have to be instructed on what it 6 has to find in order to find the defendants guilty, but what the 7 jury has to find is that the defendants engaged in acts of 8 deception and concealment that were at least in part targeted 9 towards lawful functions of the various agencies that were 10 identified. 11 agencies are and what the lawful functions at issue are, but the 12 FEC's opinion about how the election act applies to the facts of 13 the case are not relevant to a criminal trial. 14 So the jury has to be instructed about what those THE COURT: But to the extent the government seeks to 15 prove at trial that any of these individuals or entities had a 16 legal duty to report, the government's going to have to show 17 that this was express advocacy, right, and it exceeded 250 and 18 all of those things; right? 19 MR. KRAVIS: For sure. My point is just that, just as 20 in another case where the government charged a criminal 21 violation of the election act, the issue at trial is not what 22 the FEC thinks about the ads or the expenditures at issue. 23 question is what the jury thinks about those things after it has 24 heard testimony on the facts and been instructed by the Court on 25 the law. The Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 55 of 67 55 1 The point I am making is just that Mr. Dubelier's arguments 2 about whether the government has consulted with the FEC or what 3 the FEC's view of this is and so on, that that is not relevant 4 to a criminal trial alleging a violation of Section 371. 5 THE COURT: All right. 6 MR. KRAVIS: 7 MR. DUBELIER: 8 THE COURT: 9 MR. KRAVIS: Understood. Thank you. May I have just a moment, Your Honor? Yes. Thank you, Your Honor. 10 THE COURT: Thank you. 11 MR. DUBELIER: Your Honor, I hear what Mr. Kravis is 12 saying. 13 the FEC for a second. 14 is defrauding the FEC, not defrauding somebody else. 15 defrauding the FEC. 16 about whether these regulations apply is not relevant? 17 crazy. 18 Otherwise, you could take any agency or department in the 19 government, and without any communication between the Department 20 of Justice and that agency or department, the Department of 21 Justice can unilaterally decide whether or not that agency's 22 normal functions were interfered with. 23 I can't more strongly disagree. The FEC -- let's take They're the victim; right? I mean, this It's And Mr. Kravis is saying their opinion I mean, that's absolutely crazy. That's It has to be relevant. The government hasn't put forth any other case ever, ever. 24 They haven't cited to any other case ever where that proposition 25 would work. And that's the heart of what's wrong with this Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 56 of 67 56 1 2 3 4 whole thing from the beginning. And that is not Mr. Kravis. The Special Counsel made unilateral determinations about what these agencies -THE COURT: All right. Mr. Dubelier, this argument 5 you are making, this isn't the proper vehicle, motion for bill 6 of particulars, to make this argument. 7 8 9 10 MR. DUBELIER: Honor, but I understand. THE COURT: Well, I think it's relevant, Your I will sit down. All right. Thank you. Thank you. So I will deny Concord's motion for supplemental bill of 11 particulars for several reasons. 12 renews several requests that I previously denied ruling on its 13 first motion for bill of particulars. 14 Concord's earlier request that the government specify which 15 conspirators committed each act alleged in the indictment, 16 including the failure to report expenditures to the FEC and the 17 failure to register with the Department of Justice. 18 First, Concord's latest motion Most notably, I denied As I explained in my earlier ruling, granting this request 19 is unnecessary because the detailed allegations in the 20 indictment, combined with the list of co-conspirators the 21 government plans to introduce at trial and the additional relief 22 the Court ordered in that opinion, provides Concord with more 23 than enough information to conduct its own investigation of the 24 charges against it. 25 justification here for revisiting that reasoning. Concord has articulated no sufficient Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 57 of 67 57 1 Second, Concord's latest motion continues to advance legal 2 or evidentiary arguments that are unrelated to a bill of 3 particulars and that I have either ruled on or will properly 4 address later. 5 trial the government will need to establish a disclosure 6 reporting duty, but my opinion on Concord's motion to dismiss 7 addressed this argument, and the jury instructions will address 8 this argument as well. 9 For example, Concord contends that to prevail at Concord argues that the government cannot prove that any of 10 the conspirators could have had such a duty, but that argument 11 is evidentiary in nature and not relevant to a bill of 12 particulars. 13 similarly do not depend on a supplemental bill of particulars. 14 Put simply, Concord has what it needs to conduct its The viability of Concord's other legal arguments 15 investigation, evaluate its legal arguments, and prepare its 16 defense. 17 for supplemental bill of particulars. 18 On that basis, I will deny motion -- Concord's motion All right. Let's address scheduling matters. I've ordered 19 the government to supplement its bill of particulars, if 20 necessary, on or before September 27th. 21 government to file a motion to reconsider my ruling on or before 22 this Friday, and I will ask for a response from Concord within 23 seven days. 24 25 I will order the I also may put out an order directing additional briefing. I'm not sure on that. But -- I intended to discuss some of Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 58 of 67 58 1 these other scheduling matters that were raised in the proposed 2 scheduling order of the parties. 3 a couple of questions related to that proposed order. 4 MR. KRAVIS: 5 THE COURT: But Mr. Kravis, let me ask you Yes, Your Honor. All right. Can you give me some sense of 6 what kind of experts the government anticipates calling at 7 trial? 8 anticipate needing to have at trial. 9 I'm not asking for the specific experts, but who you MR. KRAVIS: So as I have discussed with Mr. Dubelier 10 previously, it is -- the government will seek to introduce some 11 evidence of what was happening on the side of the social media 12 companies in terms of how these accounts were established, used, 13 and then eventually identified, and we've provided Mr. Dubelier 14 with discovery on that subject. 15 We are looking at whether we believe that that evidence 16 would be properly presented in the form of expert testimony or 17 simply in the form of a regular, lay, fact witness. 18 only expert testimony that we are considering. 19 20 THE COURT: That's the So you don't expect to have any experts on election law, as Mr. Dubelier has argued? 21 MR. KRAVIS: 22 THE COURT: No, Your Honor. All right. So why -- I'm just curious. 23 Why does the government need until January 15th to give notice 24 of these experts? 25 waiting until March 23rd for any motions to exclude experts to If you wait until that, that means I am Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 59 of 67 59 1 2 be ripe. Even if I accept the parties' proposal that I start this 3 trial on April 6, the various dates you have all proposed means 4 that I am not ruling at the earliest until late March on all of 5 these significant issues. 6 And it seems to me, in order for the parties to prepare for 7 trial and know what exhibits are coming in and know what 8 testimony is coming in, that it makes sense to bump that 9 forward. And one thing I considered is moving everything up a 10 month. 11 with these other issues right now. 12 I'm not going to do that now given that we have to deal But I want to telegraph for you all, what I am envisioning 13 is that I am in a position, if we do set the trial date for -- 14 if I set it for April 6, I want a pretrial conference in early 15 March where I'm in a position to rule on most, if not all, of 16 the motions on that date, and that means backing up and making 17 sure these various motions become ripe beginning in early 18 January and into mid-February in order to give me time to rule. 19 So I don't see any reason why motions in limine, for 20 example, can't be staggered. I mean, there are a number of 21 motions in limine that each side would like to file, I'm sure, 22 that are completely independent of evidence or witness 23 testimony. 24 disclosed the exhibit list. 25 me these can be staggered, and it seems to me that we need to There are others that have to come after each side's I understand that. But it seems to Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 60 of 67 60 1 move these up if we will be ready to go on the date of trial and 2 that the parties are ready to go. 3 The same with the SIPA motion and the 404(b) notice. 4 Mr. Kravis, am I correct to assume that any discovery related to 5 those, 404(b) or SIPA, will be disclosed to the defense by this 6 deadline that I have imposed that you all recommended, 7 October 18th, I think? 8 MR. KRAVIS: 9 THE COURT: Yes, Your Honor. So everything related to 404(b) and SIPA 10 will be a part of the discovery? 11 they haven't already been provided? 12 MR. KRAVIS: They have been provided, if Well, the SIPA motion may concern 13 information that is not provided to the defense. 14 extent there is any information to be provided, it will be 15 provided by the discovery deadline we set in this order. 16 THE COURT: All right. And when you're talking about 17 translations, what are we talking about? 18 documents? 19 slang and idioms? 20 of objections? 21 mean in Russian? 22 But to the Are we talking about e-mails? Are we talking about Is this a lot of What are these -- are there going to be a lot Are these words that everyone knows what they What is your expectation there? MR. KRAVIS: For most of the government's exhibits, we 23 have already provided our proposed translations. We think 24 they're fine. 25 are -- most of the things we are talking about for translations But most of the documents we are talking about Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 61 of 67 61 1 2 are either e-mails or attachments to e-mails. We have not come across anything that we believe will be a 3 contested issue with respect to the translations. 4 the stuff, most of the exhibits that we intend to use at trial 5 we have already provided the proposed translations to the 6 defense, and we provided them in our discovery. 7 THE COURT: All right. For most of I may need to set another 8 status hearing before the end of October, but I have a number of 9 trials coming up. I definitely want to set a hearing for late 10 October. 11 for the parties at 10:00 a.m.? 12 trial coming up, but I presume other people can fill in for you. 13 14 15 16 17 18 19 20 I'm curious whether October 24th or October 25th works MR. KRAVIS: I know, Mr. Kravis, you have a Yes, Your Honor, if I could just have one moment. THE COURT: Yes. (Government counsel conferred.) MR. DUBELIER: Your Honor, I'm okay with the 25th. The 24th, I have a conflict. THE COURT: Okay. So Friday, the 25th, at 10:00 a.m., would that work for the government? 21 MR. KRAVIS: Yes, that's fine for the government. 22 MR. DUBELIER: 23 THE COURT: What is this for, Your Honor? This is just -- I'm just going to start 24 having monthly statuses. 25 whatever is ripe. Maybe I can rule on motions at that -- You have a motion to strike surplusage coming Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 62 of 67 62 1 in, don't you? 2 I don't know. But I want status. I also think at that time I do need to set a date. And so 3 I can do this one of two ways. 4 to back things up so that I am in a position to rule and have 5 these motions come in on a staggered basis. 6 is to have the government and the defense turn over exhibits 7 earlier. 8 all have to object to these things. 9 You get my goal here, which is One way to do this Another way to do it is to compress the time that you I'm not inclined to set all of this myself and give you all 10 another stab at trying to do that before that October hearing 11 and see if you all can reach agreement and see if it's 12 consistent with what I envision. 13 on the eve of trial making major evidentiary rulings and 14 decisions to exclude or admit testimony. 15 MR. DUBELIER: But I really don't want to be Your Honor, if I may, I think one of 16 the problems that Mr. Kravis and I faced -- and this is 17 something I think we will agree about, we floated at the last 18 hearing this April trial date because of comments you had made 19 earlier on the record that seemed to suggest to us -- 20 THE COURT: That's the latest I'm going. 21 MR. DUBELIER: Well, I think that became the problem, 22 then. 23 back and tried to work backwards from that. 24 that some of this becomes very tight in terms of deadlines. 25 And that is, we put that date out there, and then we went And I understand But Your Honor, just as a practical matter, again, and the Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 63 of 67 63 1 Court knows this, I don't want to belabor it, it's nobody's 2 fault, but not until a week or two from now will I first be able 3 to sit down with the client and go through documents that are 4 relevant to this. 5 THE COURT: Understood, Mr. Dubelier, but you have had 6 this discovery now for a long time. 7 conversations, but I trust that you have done a lot of hard work 8 on narrowing this stuff down for your client. 9 10 MR. DUBELIER: THE COURT: I get that you need to have We have, Your Honor, but -- We are not even six months out from trial. 11 We are not talking about an unusually fast trial date. 12 the way trials go. 13 what, six, seven months? We are talking about April 6. 14 MR. DUBELIER: 15 THE COURT: This is That is, Yep, that's right. That's a lot of time. 16 ample time. 17 motions you want to file, and you are going to be on a tight -- 18 I mean, gone are the days of a month for you to file your motion 19 and them a month to respond. 20 the latest I'm setting this is early April. 21 And you have a lot to do. I think that's But you have a lot of We're now on a trial track, and If the government needs to disclose its exhibits earlier, 22 the government's going to have to do that. 23 indicted this case. 24 going to be working hard from now until then, as am I. 25 we're not going to just let this case go for another year. It's time to move. The government And the parties are But I Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 64 of 67 64 1 think if I left it up to you all, I would be trying this case in 2 2021. 3 MR. DUBELIER: No, actually, I really strongly 4 disagree with that, Your Honor. 5 Mr. Kravis and I were of the mind that probably June, and then 6 all of these deadlines would work -- 7 THE COURT: 8 MR. DUBELIER: 9 THE COURT: 10 I really do. I think that I'm not comfortable --- not 2021. I'm going to be done by June. MR. DUBELIER: Let me ask one question with respect to 11 deadlines, Your Honor. 12 to ask you to reconsider your order with respect to the motion 13 to dismiss, he's going to do that by -- 14 15 THE COURT: This Friday, and you are going to oppose it by next Friday. 16 17 You indicated that if Mr. Kravis wants MR. DUBELIER: two weeks on that. 18 THE COURT: 19 MR. DUBELIER: 20 THE COURT: 25 We are entitled to two weeks under the This is a simple issue, do I want to reconsider it or not. 23 24 No. rules, Your Honor. 21 22 Your Honor, I'm going to ask you for MR. DUBELIER: I take issue with this being a simple issue. THE COURT: Well, you can start working on your Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 65 of 67 65 1 opposition now. You know what he's going to say. 2 reconsider it. 3 I've been very generous with time and briefing, and you all are 4 going to have to start moving more quickly. You've got two weeks from now. 5 MR. DUBELIER: 6 I am entitled to under the rules. 7 motion, we get 14 days. 8 9 THE COURT: expedite things. I should I'm not -- look, Your Honor, all I'm asking for is what All right. All right? Congress said if they file a Well, I have the power to And I think this is a pretty 10 discrete issue, do I or do I not reconsider the ruling that I 11 made with respect to how I interpreted the indictment. 12 MR. DUBELIER: 13 THE COURT: Are you asking me what do you do? No. I'm just saying, I think that that's 14 a discrete issue. 15 more complicated issues with respect to whether the indictment 16 should be dismissed, and I am giving you three weeks for this. 17 Now you're going to raise a whole bunch of The question teed up is whether or not I should reconsider 18 that decision. 19 other complicated legal arguments you want to make that you are 20 going to have 21 days to brief. 21 22 23 24 25 It's very discrete. MR. DUBELIER: It's not tied into all the All right, Your Honor. object and ask for the time, and you said no. THE COURT: All right. All I can do is So thanks. Anything else from the government? MR. KRAVIS: Nothing further from the government. Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 66 of 67 66 1 Thank you, Your Honor. 2 THE COURT: All right. Have you all talked about 3 speedy trial? 4 not. 5 continue to exclude time under the Speedy Trial Act? 6 I don't know whether we have motions pending or I'm not sure we do. MR. DUBELIER: Do both parties agree that I should Yes, Your Honor. I think we did this, 7 that both parties, assuming that you would select the April 2nd 8 trial date -- 9 10 THE COURT: Which I haven't done yet. MR. DUBELIER: 11 that you would. 12 the time to get to there. 13 I understand, but our assumption was I think we waived speedy trial with respect to THE COURT: To get to there? All right. Since I 14 haven't set that deadline, I just want to confirm on the record 15 that you do waive the time under the Speedy Trial Act. 16 parties consent. 17 next status hearing, which is October 25th at 10:00 a.m., in 18 order to give the parties a chance to file the motions that they 19 need to file and defense to meet with the client on discovery. 20 I do find it is in the interest of justice to exclude this time. 21 I will waive the time from today through our Anything else? 22 MR. DUBELIER: 23 THE COURT: 24 25 Both No, Your Honor. Okay. Thank you. (Proceedings adjourned at 11:24 a.m.) Case 1:18-cr-00032-DLF Document 203 Filed 09/26/19 Page 67 of 67 67 1 CERTIFICATE OF OFFICIAL COURT REPORTER 2 3 I, Sara A. Wick, certify that the foregoing is a 4 correct transcript from the record of proceedings in the 5 above-entitled matter. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 /s/ Sara A. Wick September 17, 2019 SIGNATURE OF COURT REPORTER DATE