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United States v. Schulte

United States District Court, S.D. New York

January 13, 2020


          OPINION & ORDER

          Honorable Paul A. Crotty, United States District Judge.

         Defendant Joshua Schulte has been indicted for stealing national defense information from the Central Intelligence Agency ("CIA") and transmitting it to WikiLeaks. Schulte's trial is scheduled to begin on February 3, 2020. All parties have an interest in a timely trial. Most significantly, as both the defense and Government concede, delays of this trial impose a substantial hardship on Schulte who has been detained pretrial at Metropolitan Correctional Center ("MCC") for a significant period under special administrative measures. (Dkt. 128 at 4; Dkt 131 at 9.) "Although a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges" and a prompt trial are fundamental. Dickey v. Flo., 398 U.S. 30, 37-38 (1970); Klopfer v. State of N.C, 386 U.S. 213, 223 (1967). Thus, notwithstanding recent defense motions[1] that appear to be calculated to "put off confrontation," the Court has an "affirmative obligation" to provide a prompt trial for Schulte. See United States v. Black, 918 F.3d 243, 253 (2d Cir. 2019) ("Pursuant to the Sixth Amendment, the court and the government owe an affirmative obligation to criminal defendants and to the public to bring matters to trial promptly.").

         At a hearing on December 18, 2019, the Court ruled determined that Schulte had waived the attorney-client privilege with respect to certain legal advice he received while at the MCC that he intends to introduce at trial as part of his defense. The Court provided the parties an opportunity to brief the issue. In a letter dated January 3, 2020, Schulte claims the attorney-client privilege has not been waived because he has not "announce[d] a final decision" as to whether to present his lawyer's testimony at trial. (See Dkt. 232.) Schulte, however, has repeatedly asserted reliance on his lawyer's advice (and testimony) for trial and retains his right to call his lawyers at trial. He has invoked the attorney-client privilege to justify a third severance of his upcoming trial and disqualification of his own attorneys and the entire office of the Federal Defenders of New York. (See Dkt. 128; Dkt. 150.) The Government contends that Schulte has waived his privilege over these communications by seeking affirmative relief from the Court in reliance on his counsel's advice and by giving notice that he intends to rely on counsel's advice at trial. (Dkt. 241 at 1.)

         There is no doubt Schulte has impliedly waived the attorney-client privilege by relying on the advice of counsel for his defense and by affirmatively injecting the advice of counsel to persuade this Court to grant extraordinary pretrial relief. The Defendant is directed to disclose the attorney-advice that Schulte relies on to defend against the Government's allegations, which is set forth in the Defendant's letters dated August 26, 2019 (Dkt. 128) and October 10, 2019 (Dkt. 150).


         Defendant Joshua Schulte has been incarcerated in MCC since December 14, 2017. He was initially released on bail, but bail was revoked after this Court found that Schulte violated the terms of his release relating to unauthorized use of the Internet. The Second Circuit subsequently affirmed the Court's detention order, United States v. Schulte, 18-145, Order, Dkt. 34 (2d Cir. Mar. 6, 2018). While at MCC, Schulte violated the terms of his protective order and was charged with disclosing classified information using contraband cellphones in counts four and eleven of the superseding second indictment ("MCC Counts").[2] Schulte's alleged use of contraband cellphones and disclosure of classified information led to search of the MCC premises and the FBI recovered contraband cellphones and notebooks, which Schulte labeled "ATTORNEY CLIENT PRIVILEGE." The notebooks contained Schulte's handwritten notes.

         The evidence in support of the MCC Counts includes, inter alia, evidence showing that Schulte used the contraband cellphones, evidence of emails Schulte sent to a reporter attaching a Protected Search Warrant and the Classified Search Warrant, evidence Schulte posted on Social Media Accounts where he claimed the FBI was seeking to frame him, and prison calls between Schulte and a member of the media. The Government learned of Schulte's misconduct through a confidential informant who provided the Government with photographs and video of Schulte using the contraband cellphones as well as images of screenshots of the contraband cellphones being used to transmit documents. The seized notebooks contain a list of Encrypted Email Accounts and the passwords, draft tweets including classified information, a note to "schedule tweets," and a to-do list that included "delete suspicious emails." Finally, the notebooks contain writings declaring a "information war" against the United States ad a "Malwae Article" that appear to be intended fr public dissemination. The notebook is alleged to contain evidence of Schulte's knowledge of non-public CI information possessed by Wikileaks.

         On August 26, 2019, the defendant raised a purported ethical issue (i.e., the advocate-witness rule) concerning privileged advice provided to Schulte and contended that the issue required severing the MCC Counts. (Dkt 128.) According to defense counsel, "two attorneys from the Federal Defender's office have favorable, relevant, and admissible testimony to provide in Mr. Schulte's defense to" the MCC Leak Count. (Dkt. 128 at 1.) Defense counsel submitted that to prove the MCC Leak Count, the Government would have to show, inter alia, that the defendant "acted willfully, i.e., voluntarily and intentionaly, and with the specific intent to do something that the law forbids, namely with a bad purpose either to disobey or disregard the law." (Id. at 2.) Defense counsel urged that the Government would seek to introduce excerpts of Schulte's writings in his notebooks as evidence of his specific intent to violate the law." (Id.) "To defend against the [Govemment's allegations," the defense stated to this Court that "Schulte would call two of his attorneys-Matthew B. Lasen and Sabrina S. Shroff to present favorable testimony bearing on his state of mind." (Dkt. 128 at 2) (emphasis added). Defense counsel did not explain why they waited almost one yea to raise this purported ethical issue.[3]

         On September 26, 2019, the Court denied the motion for severance based on the advocate-witness matter and the request for Curcio counsel. (Dkt. 147.) The Court held that the advocate-witness matter could be avoided because Mr. Lasen who provided the testimony at issue is not on Schulte's trial team and could testify as to Schulte's state of mind. The Court further noted that "the Defendant ha[d] not identified any additional testimony that only trial counsel (Ms. Shroff) possess." (Dkt. 147 at 4.) The Court further emphasized that Mr. Larsen's purported advice was undisputedly favorable to Schulte and would be provided to defend against the Government's allegations and thus, Ms. Shroff would not be disqualified under Rule 3.7(b).

         On October 10, 2019, Schulte again placed the attorney-client privilege at issue. The Federal Defenders moved to disqualify themselves from representing Schulte, acknowledging that the request would delay Schulte's trial and cause him substantial hardship. (Dkt. 150 at 1-2.) Schulte asserted that Mr. Larsen and Ms. Shroff-"have important and admissible testimony to offer in Mr. Schulte's defense." (Id. at 2.) Defense counsel filed the October 10 Letter ex parte "to avoid disclosing to the prosecutors the favorable defense testimony discussed herein, which reveals not only defense strategy but also the substance of privileged attorney-client communications." (Dkt. 150 at n.1.) (emphasis added). In the October 10 Letter, counsel elaborated on the advice provided to Schulte and the purported favorable testimony of Larsen and Shroff. In arguing that Ms. Shroff was "likely to be an important witness at Schulte's trial," defense counsel urged that the Government had made clear that "it intends to rely at trial on [Schulte's writings in] the MCC notebooks to prove, inter alia, that Mr. Schulte illegally attempted to transmit national defense information from the MCC i.e., that he intended to transmit the information and took a substantial step towards doing so." (Dkt. 150 at 4.)

         According to defense counsel, since "Ms. Shroff is both lead trial counsel and one of the potential fact witnesses on an important subject, she cannot objectively assess [the strategy decision of] whether she or Mr. Larsen would make the most effective witness" or whether "both witnesses are essential." (See Dkt. 150, at 3, 6.) Defense counsel further submitted that "an independent lawyer could reasonably conclude that Ms. Shroffs testimony is necessary because, without it, Mr. Larsen's testimony will be uncorroborated." (See Id. at 4.) Defense counsel conceded that the relief sought (i.e., disqualification) would be unnecessary if the MCC notebooks were not used at trial. (Dkt. 150 at n.5.) Alternatively, the Federal Defenders renewed their request to "appoint Curcio counsel to advise Schulte with respect to the potential testimony of Larsen and Shroff. (Dkt. 150, at 2.) The Government did not oppose the request for Curcio counsel. The Court appointed Curcio counsel, Sean Maher, to advise Schulte on, inter alia, the attorney-witness matter and the advisability of pursuing such testimony.

         On December 13, 2020, defense counsel invoked the privilege again. (Dkt. 220.) The so-called favorable testimony that Schulte intends to introduce through Mr. Larsen and Ms. Shroff is now potentially the basis for a pretrial ineffective assistance of counsel claim.

         The Court reviewed extensive submissions on this matter from counsel and appointed counsel for the defendant.[4] The Court then held a Curcio inquiry on December 18, 2019. The Court questioned defense counsel about the purported advice at issue. Of course, defense counsel does not take the position that they advised Schulte to sneak contraband cellphones into MCC, nor did they advise Schulte to share classified information with reporters, which is precisely what Schulte is charged with in the MCC Counts. (See Hr'g Tr. Dec. 18, 2019, Dkt. 246 at 9:21-10:7.)

         The Court confirmed with defense counsel that there was no additional testimony on the matter other than the testimony stated in the letters dated August 26 (Dkt. 128) and October 10 (Dkt. 150)-counsel confirmed there was none. (See Hr'g Tr. Dec. 18, 2019, Dkt 246 at 3:24-4:7; 17:2-24.) The Court then questioned Schulte to determine whether he had an adequate opportunity to consult with Curcio counsel, to ensure he understands the consequences of the decision (e.g., waiver of attorney-client privilege), and to determine whether he wishes to call Mr. Larsen and/or Ms. Shroff at trial. At the hearing, Schulte stated he wishes to retain his right to call both Mr. Larsen and Ms. Shroff at trial. (See Hr'g Tr. Dec. 18, 2019, Dkt. ...

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