Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 1 of 20 I188SCHC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA v 17 Cr 548 PAC JOSHUA ADAM SCHULTE Defendant x January 8 2018 3 30 p m Before HON PAUL A CROTTY District Judge APPEARANCES GEOFFREY S BERMAN Interim United States Attorney for the Southern District of New York MATTHEW J LAROCHE SIDHARDHA KAMARAJU Assistant United States Attorneys BRAFMAN ASSOCIATES Attorneys for Defendant JACOB KAPLAN Also present EVAN SCHLESSINGER FBI DAVID DONALDSON FBI JOHN MOSCATO Pretrial Services 23 24 25 SOUTHERN DISTRICT REPORTERS P C 212 8050300 1 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 2 of 20 I188SCHC 2 1 Case called 2 THE DEPUTY CLERK Counsel for the government please 3 state your appearance 4 MR LAROCHE Good afternoon your Honor Matt 5 Laroche and Sid Kamaraju for the government With us at 6 counsel table is David Donaldson and Evan Schlessinger from the 7 FBI and also John Moscato from pretrial services 8 THE COURT Thank you for coming 9 MR KAPLAN Good afternoon your Honor Jacob Kaplan 10 for Mr Schulte 11 THE COURT Mr Kaplan 12 Mr Schulte how are you 13 I understand Mr Kaplan you have an application 14 MR KAPLAN Yes your Honor 15 THE COURT Go ahead 16 MR KAPLAN Judge on the last court date when we 17 left the idea was that we had consented to detention with the 18 understanding that Mr Schulte would be sent down to Virginia 19 to face charges based on a Virginia warrant None of that 20 happened Virginia never came to get him Virginia just 21 didn't do anything in this case But before I address the bail 22 issues I think it's important that this Court hear the full 23 story of how we actually get here 24 25 At one of the previous court appearances I believe it was the November 8th date this Court asked why the defense SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 3 of 20 I188SCHC 3 1 attorney in this case would need security clearance And the 2 answer that was given by one of the prosecutors I believe was 3 that there was some top secret government information that was 4 found in Mr Schulte's apartment and that out of an abundance 5 of caution it would be prudent that the defense attorney get 6 clearance But I don't think that's entirely accurate 7 While the current indictment charges Mr Schulte with 8 child pornography this case comes out of a much broader 9 perspective In March of 2017 there was the WikiLeaks leak 10 where 8 000 CIA documents were leaked on the Internet The FBI 11 believed that Mr Schulte was involved in that leak As part 12 of their investigation they obtained numerous search warrants 13 for Mr Schulte's phone for his computers and other items in 14 order to establish the connection between Mr Schulte and the 15 WikiLeaks leak 16 As we will discuss later in motion practice we 17 believe that many of the facts relied on to get the search 18 warrants were just flat inaccurate and not true and part of 19 our belief is because later on in the third or fourth search 20 warrant applications they said some of the facts that we 21 mentioned earlier were not accurate So we will address this 22 in a Franks motion going forward but what I think is important 23 for the Court is in April or May of 2017 the government had 24 full access to his computers and his phone and they found the 25 child pornography in this case but what they didn't find was SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 4 of 20 I188SCHC 1 4 any connection to the WikiLeaks investigation 2 Since that point from May going forward although 3 they later argued he was a danger to the community they let 4 him out they let him travel There was no concern at all 5 That changed when they arrested him in August on the child 6 pornography case 7 At the initial bail conference they argued as one of 8 the reasons to detain Mr Schulte was that there were images on 9 his phone that showed a sexual assault They were able to 10 determine that it was 11 12 13 14 15 16 17 THE COURT This is the application before Judge Pitman MR KAPLAN Yes In front of this Court as well on the second bail hearing as well THE COURT I don't recall that I do recall seeing it in the transcript from Judge Pitman MR KAPLAN That is correct As part of that case 18 Judge Pitman rejected that as a basis for detention finding 19 that since the government conceded that the victim could not 20 identify Mr Schulte there was no basis for detention based on 21 that factor alone 22 Not being deterred by that it's my understanding that 23 the FBI then sent the photos that were the subject of that 24 issue to Virginia and in November of 2015 Virginia itself 25 issued an arrest warrant for Mr Schulte based on those facts SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 5 of 20 I188SCHC 5 1 But nothing ever happened with that arrest warrant November 2 15 they get the warrant nothing happened 3 That all changes in early December of 2017 On 4 December 5 I had a phone call with John Moscato from pretrial 5 services to discuss whether pretrial services would consent to 6 Mr Schulte's supervision being transferred from the Southern 7 District of New York to Lubboch Texas where he can live with 8 his parents Pretrial services tells me they have no objection 9 to that at all 10 I then had a conversation with the prosecutors who 11 told me they would object but we could address it with the 12 court Two days later is when Virginia decides to do something 13 with that warrant Two days after we try to move Mr Schulte 14 to Lubboch Texas now suddenly Virginia decide that they want 15 to arrest Mr Schulte based on this warrant And in fact 16 when the NYPD officers came to arrest Mr Schulte at 6 a m on 17 a Thursday they told him that we came because the FBI told us 18 to come arrest you not Virginia authorities but the FBI came 19 and told us to arrest you 20 What I think is important is the Virginia case is just 21 a means to keep Mr Schulte detained There is no new 22 information The state prosecutor down in Virginia has spoken 23 with defense counsel down in Virginia and she told her 24 candidly that there is no new information it's the same 25 pictures that the FBI had that the FBI just gave to Virginia SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 6 of 20 I188SCHC 1 and asked them to make an arrest She still cannot identify 2 Mr Schulte Nothing has changed on that basis that would 3 be 4 THE COURT By she can't identify you mean 5 MR KAPLAN She being the victim And Mr Laroche 6 candidly told that to Judge Pitman when he asked that she 7 could not identify him as being the one who assaulted her 6 8 What is kind of interesting is while the government 9 in their detention letter had two bases one was the Virginia 10 case Virginia itself seems not to care Virginia they had 11 him detained on a state warrant he was incarcerated and they 12 were gunning to get him They were scheduled to come December 13 20 to pick him up The minute we consent to federal detention 14 and now he is no longer out suddenly they are hands off They 15 didn't come to pick him up They don't issue a writ to come 16 get him from federal custody Instead my understanding is 17 they simply have a detainer that if this court lets him out on 18 bail they are going to come pick him up So this idea that he 19 is a danger to the community that there is new information in 20 Virginia which ties him to this crime is just not true 21 Virginia is just sitting back and waiting to see what happens 22 They have no interest in Mr Schulte and if they did Mr 23 Schulte would have been there already 24 25 The second basis that the government had in its letter for detaining Mr Schulte was the usage of computers In the SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 7 of 20 I188SCHC 7 1 government's letter they note how if you search the IP 2 address for Mr Schulte's apartment they found numerous 3 logons to his Gmail account in clear violation of this 4 court's order But what the government's letter doesn't 5 mention is that Mr Schulte had a roommate his cousin Shane 6 Presnall and this roommate who the government and pretrial 7 services knew about was allowed to have a computer 8 And more than that based on numerous conversations 9 at least two conversations between pretrial services John 10 Moscato Josh Schulte and Shane Presnall it was Shane's 11 understanding that pretrial services allowed him to check Mr 12 Schulte's email and to do searches for him on the Internet 13 with the idea that Josh Schulte himself would not have access 14 to the computer 15 And the government gave 14 pages of logon information 16 to establish this point And Judge we have gone through all 17 14 pages and every single access and login corresponds to a 18 time that Shane Presnall is in the apartment His computer has 19 facial recognition it has an alphanumeric code and there is 20 no point when Josh Schulte is left himself with the computer 21 without Shane being there and that was their understanding 22 Now I spoke to John Moscato and he explained to me 23 that he never intended to give him such carte blanche to do 24 this that that was a misunderstanding Judge a 25 misunderstanding is not an intentional violation of this SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 8 of 20 I188SCHC 1 2 3 4 8 court's bail conditions It is a misunderstanding and THE COURT It's a very convenient misunderstanding isn't it MR KAPLAN I understand that But this is something 5 which if you look at the court's original bail order it says 6 that pretrial services has the discretion to allow them 7 computer usage and they believed they were complying with 8 that they believed they were complying with the judge's order 9 by discussing it with pretrial services They didn't go behind 10 anyone's back 11 The whole concept of not allowing Mr Schulte access 12 to his computers is the child pornography case what he may do 13 those fears are allayed when you have someone else doing it for 14 him and that's Mr Presnall And Judge I think it's really 15 important that in 14 pages of login information every single 16 one corresponds to a time when Shane is in the apartment This 17 is not him with unfettered access to the Internet 18 More importantly Judge this is not him intentionally 19 violating this court's bail conditions When you look at 18 20 U S C 3148 which discusses revocation of bail it talks about 21 either probable cause that the defendant committed a crime 22 while on release Well we don't have that here 23 I will wait for your Honor 24 THE COURT Go ahead 25 MR KAPLAN The other one is clear and convincing SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 9 of 20 I188SCHC 1 9 evidence that the defendant violated a bail condition 2 THE COURT Any other condition of release 3 MR KAPLAN Yes I don't see clear and convincing 4 evidence that he intentionally violated a bail condition This 5 was at worst a misunderstanding between not just Joshua Schulte 6 and pretrial services but there was a third party who was 7 there a third party who had these conversations and based on 8 those conversations he believed that he was able to do this 9 So Judge what I am asking you is to one completely 10 reject the Virginia case as a basis because Virginia itself is 11 rejecting it they don't care And there is still no evidence 12 13 14 15 THE COURT Let me see if I have the sequence right Mr Kaplan On December 7 the government moved for reconsideration of the decision to remand Mr Schulte correct 16 MR KAPLAN Correct 17 THE COURT Thereafter you consented to that 18 MR KAPLAN Yes on the 14th I consented with the 19 idea that the government had two bases one Virginia one 20 the logon information on the computers I wanted the Virginia 21 issue to be resolved and we consented to detention to allow 22 Virginia to come to New York like they were scheduled to do 23 when he was in state custody pick him up and bring him down 24 to Virginia to be arraigned That never happened 25 THE COURT You agreed that we would meet today as a SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 10 of 20 I188SCHC 1 2 10 control on that MR KAPLAN The idea would be if something happened 3 in Virginia we would have a control date today forcing them to 4 send him back here to New York but absolutely nothing has 5 happened I think the government will agree that nothing has 6 happened on the Virginia front 7 THE COURT Anything else Mr Kaplan 8 MR KAPLAN I would ask if you could just put him 9 back on the bail conditions where he was before since there 10 was no willful violation and if the Court wants to make clear 11 there is no computer access at all even with a third party we 12 will do that 13 THE COURT I think that was pretty clear before 14 Mr Laroche 15 MR LAROCHE Thank you your Honor We still do 16 believe that detention is appropriate here and if I could just 17 address specifically some of the points raised 18 First Virginia In no way is Virginia's conduct over 19 the past few weeks an indication that they do not care about 20 Mr Schulte After the conference last time I had 21 conversations with Virginia in terms of how we would get him 22 down there I told them the easiest way to do that is if they 23 would writ him from here down to Virginia But I made clear to 24 them that regardless of the outcome of their arraignment that 25 our case would proceed first in other words we would be SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 11 of 20 I188SCHC 11 1 taking him back up here and this case would proceed first 2 Under those circumstances Virginia said We are not going to 3 writ him just so that we can have a bail determination down 4 here and you take him back you let your case go first and we 5 will rely on the detainer that we have already put in place to 6 keep him in custody So the idea that Virginia doesn't seem to 7 care about Mr Schulte just does not pass muster 8 I would also note this idea that Virginia somehow 9 came up with these charges because we passed them photographs 10 also is not the case What happened was at the time that he 11 was arrested for the CP charges the FBI provided Loudoun 12 County law enforcement officials with the photographs It's 13 our understanding that they conducted their own investigation 14 which included interviewing the victim the person who was on 15 those photographs and through interviews with that person 16 they were comfortable through the development of that 17 evidence that Mr Schulte was the one whose hands are on the 18 pictures of that photograph And that's based on a couple of 19 things One that the victim remembers the night in question 20 It was one of the few nights that she passed out and didn't 21 remember what occurred She could also apparently identify 22 the bathroom which was the bathroom where she was staying as a 23 roommate of Mr Schulte's 24 So they have developed additional information which 25 THE COURT So from Virginia's standpoint Virginia SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 12 of 20 I188SCHC 1 has now satisfied itself at least as a preliminary matter 2 that the victim has been identified 12 3 MR LAROCHE They know the victim has been 4 identified and they have also satisfied themselves to bring 5 felony charges against the defendant that the pictures are of 6 the defendant 7 So this is something that we asked the court to 8 consider during the first bail arguments and Judge Pitman 9 chose not to But again given there are additional state 10 sexual assault charges pending against the defendant we do 11 think they are reliable and should be considered by the Court 12 Second with respect to this idea that Mr Schulte 13 just thought he could use his roommate to conduct searches on 14 the Internet I just do not think that is a persuasive 15 argument your Honor If you recall during both bail 16 arguments the government's principal concern was that this 17 defendant would have access to the Internet and that's not 18 just because he is a child pornography defendant it's because 19 the defendant has specific expertise with respect to computers 20 For over six years the defendant was employed by the Central 21 Intelligence Agency and he held positions including technical 22 development officer and through that experience he gained 23 expertise in computers computer networks and the Internet and 24 the vulnerabilities of the same So the idea that this 25 defendant was just somehow checking his email during this time SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 13 of 20 I188SCHC 13 1 does not pass muster and I would say is inconsistent with the 2 arguments and the court's ruling in terms of bail 3 And even more troubling which wasn't really addressed 4 by defense counsel is that the defendant or someone in his 5 apartment was using TOR in his apartment during the time when 6 he was on pretrial release and this is extremely troubling to 7 the government because TOR is a way to establish anonymous 8 connections to various Internet locations to hide the person 9 who is actually accessing those sites It's used to access 10 child pornography It's also used to access Web sites where 11 you don't want to leave a trail And since the defendant 12 brought it up I think it's particularly relevant given the 13 other investigation which continues to be ongoing with respect 14 to this defendant 15 As defense counsel noted in March of 2016 there was 16 a significant disclosure of classified material from the 17 Central Intelligence Agency The material that was taken was 18 taken during a time when the defendant was working at the 19 agency The government immediately had enough evidence to 20 establish that he was a target of that investigation They 21 conducted a number of search warrants on the defendant's 22 residence And I would disagree with defense counsel's 23 characterization that those search warrants haven't yielded 24 anything that is consistent with his involvement in that 25 disclosure In fact our investigation is ongoing He remains SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 14 of 20 I188SCHC 14 1 a target of that investigation And part of that investigation 2 is analyzing whether and to what extent TOR was used in 3 transmitting classified information So the fact that the 4 defendant is now while on pretrial release using TOR from his 5 apartment when he was explicitly told not to use the Internet 6 is extremely troubling and suggests that he did willfully 7 violate his bail conditions 8 So under those circumstances your Honor I do not 9 believe that there are a set of conditions that will ensure 10 that this defendant is not going to access the Internet and 11 pose a danger to the community 12 THE COURT Mr Kaplan 13 MR KAPLAN Judge as to Virginia this is part of 14 the issue We have two attorneys in New York debating the 15 evidence in the case of Virginia when he can just be arraigned 16 in Virginia and let the judge there assess the situation I 17 understand Mr Laroche is basing his comments on information he 18 has gotten from the state prosecutors and so are we I had 19 defense counsel who had a very candid conversation with the 20 state prosecutor So I'm not sure why we are having this 21 debate in New York when there is a simple way of having it in 22 Virginia and see whether the judge in Virginia feels there is 23 any basis to remand him 24 25 As for the Internet just a couple of quick points The judge's bail order on September 14 in paragraph 11 SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 15 of 20 I188SCHC 1 specifically states Refrain from possessing or using a 2 computer computer network and or Internet access unless 3 specifically approved by pretrial services That was the 4 court's written order 5 15 Judge we have a pretrial services member here in 6 court The Court can ask him about his conversations with the 7 defendant and with Mr Presnall This idea that he was simply 8 using his roommate to do this they asked if they could do 9 this and they asked because they didn't want to run afoul of 10 this court's bail conditions 11 Just briefly about this notion of TOR I understand 12 that the government's position is TOR is used by many many bad 13 people It's also used by many many good people The TOR is 14 simply a way of going online without having the government look 15 at everything you do Now I understand in a case like this 16 the government puts a nefarious intent to that In this case 17 the reason why TOR was accessed was because Mr Schulte is 18 writing articles conducting research and writing articles 19 about the criminal justice system and what he has been through 20 and he does not want the government looking over his shoulder 21 and seeing what exactly he is searching That's all it is 22 If there is a concern about his computer access if 23 there is a concern about him checking his email there is a 24 simple solution no computers at all no thirdparty access 25 nothing and that's the combination of conditions which will SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 16 of 20 I188SCHC 16 1 ensure that he is not a danger Besides for that I don't see 2 what has necessarily changed intentionally on behalf of Mr 3 Schulte since the court's bail order two months ago 4 THE COURT All right 5 On December 14 I revoked Mr Schulte's bail It was 6 on consent and without prejudice to Mr Kaplan renewing a 7 motion on January 4 In accordance with the proceeding that 8 day we agreed that we would meet again on January 4 9 Having studied 18 U S C 3148 sanctions for violation 10 of release conditions I find that there is a combination of 11 events here including the fact that the victim has now been 12 identified in Virginia there is a clear danger and I find 13 that the defendant violated the terms of the release conditions 14 by engaging in having his roommate access the computers using 15 very sophisticated methodology So bail continues to be 16 revoked and an order to that effect will be entered at the 17 conclusion of today's hearing 18 Anything else to take up today Mr Laroche 19 MR LAROCHE I think there is a matter of scheduling 20 and we did want to alert the Court to a discovery issue As 21 the Court will recall there was a period of time where the 22 government had not been provided a computer and hard drive so 23 that the government could essentially reproduce the defendant's 24 desktop computer As the Court might recall the desktop 25 computer is the computer on which the government found over SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 17 of 20 I188SCHC 17 1 10 000 images of child pornography It was set up in a way 2 that was sophisticated with several layers of encryption We 3 were provided that computer when Mr Kaplan became counsel was 4 retained by Mr Schulte 5 The FBI and the government has made a number of 6 efforts to try to load that information on to the computer An 7 issue has arose in connection with that that we wanted to tell 8 the Court about Because there is a classified document that 9 is located on the defendant's computer it is extremely 10 difficult and we have determined not possible to remove that 11 document forensically and still provide an accurate copy of the 12 desktop computer to the defendant 13 So in those circumstances defense counsel is going to 14 require a top secret clearance in order to view these 15 materials It's my understanding that that process is ongoing 16 and we have asked them to expedite it As soon as the 17 defendant's application is in we believe he will get an 18 interim classification to review this material within 19 approximately two to three weeks Unfortunately that hasn't 20 occurred yet So the defendant still does not have access to 21 that particular aspect of discovery So we are working through 22 that as quickly as we can 23 24 25 THE COURT So it will take two to three weeks for the review after the top secret clearance is granted MR LAROCHE To get an interim clearance SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 18 of 20 I188SCHC 1 2 18 THE COURT What is the schedule for the interim clearance 3 MR LAROCHE Defense counsel has just been provided 4 either early this week or last week a document to essentially 5 get the application documents he needs to do the background 6 check for that clearance Once he submits that application 7 request two to three weeks from his submitting it we believe 8 we will have an interim clearance for him so that he will have 9 access at that point He still will have to review the 10 materials at a location that we will make available at the FBI 11 Unfortunately as of right now that is the only way we see 12 forward in terms of getting him access to be able to review it 13 in terms of discovery in this case 14 15 16 THE COURT So what is the time period we are talking about It sounds like five to six weeks MR LAROCHE I know from doing these applications 17 they are extensive So it might take a bit of time for him to 18 get the materials together but as soon as he gets it in it 19 will take about two to three weeks So yes I think five to 20 six weeks from now hopefully this issue is resolved 21 MR KAPLAN Judge if I may So I got a onepage 22 application last week which I filled out and returned hours 23 later My understanding is once they process that onepage 24 application they are then going to give me access to a much 25 larger application which will take me quite a while to answer SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 19 of 20 I188SCHC 19 1 Then once that's completed the two to threeweek process will 2 start So I have not yet received the larger application I 3 am not sure what the timetable is there 4 THE COURT I should have pointed out before when I 5 referred to a January 4 meeting January 4 was a snow day So 6 we are meeting on the first day subsequent to the bail order 7 January 8 8 David give me a schedule for the week of February 12 9 THE DEPUTY CLERK February 15 at 4 30 p m 10 THE COURT That's a control date to see where we are 11 with regards to Mr Kaplan's application 12 Anything else Mr Kaplan 13 MR KAPLAN Eventually we may have an issue with 14 speedy trial when it comes to access to the application and 15 access to the discovery materials but when that comes I will 16 mention it to the Court 17 THE COURT Fine 18 MR LAROCHE Your Honor the government moves to 19 exclude time until the February 15 control date in the 20 interests of justice so that the parties can complete 21 discovery the defense counsel can begin reviewing it and also 22 continue considering motion practice in this case 23 THE COURT Any objection Mr Kaplan 24 MR KAPLAN I am fine as of now to this date 25 THE COURT For the reasons stated the time between SOUTHERN DISTRICT REPORTERS P C 212 8050300 Case 1 17-cr-00548-PAC Document 29 Filed 01 29 18 Page 20 of 20 I188SCHC 20 1 now and February 15 will be excluded It's in the interest of 2 justice to do so Those interests outweigh the interests of 3 the public and defendant in a speedy trial 4 Thank you 5 Adjourned 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS P C 212 8050300
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