MANHATTAN (CN) — In the same week it was reported that prosecutors are in talks to obtain Rudy Giuliani's electronic communications, three Giuliani associates sought to have their federal indictments dismissed on the basis that the evidence against them comes from emails that have attorney-client privilege.
Lev Parnas, Igor Fruman, and Andrey Kukushkin were indicted in October 2019, accused of funneling political donations through a limited-liability company and employing straw donors. Southern District of New York prosecutors brought additional counts this fall in a superseding indictment, but attorneys for trio now say both indictments should be dismissed “for a gross violation of the defendants’ attorney-client privilege” arising from an email chain with attorneys and advisers related to their joint cannabis business venture.
In a Wednesday memo for Fruman, attorney Todd Blanche argued that the government’s filter team should have inquired whether the defendants intended to assert privilege over that email chain, which included requests for both legal advice and legal services, before turning the evidence over to the trial team.
“That did not happen,” Blanche wrote. “The court cannot un-ring this bell, and therefore, the only remedy is dismissal of the superseding indictment, as the entire process has been tainted by the conduct of the government.”
In the absence of dismissing superseding indictment in its entirety, Blanche asked in the alternative that all evidence seized from the improper use of the privileged email communication be suppressed. A partner at Cadwalader, Wickersham & Taft, Blanche previously represented former Trump campaign manager Paul Manafort.
Separately Wednesday, Kukushkin’s attorney Gerald B. Lefcourt alleged that the government was made aware of his client’s assertions of attorney-client privilege with multiple lawyers and advisers in the email chain. “To my knowledge, the government never made an application to the Court for a privilege ruling,” Lefcourt wrote.
The already-postponed trial was set to start in March 2021 before U.S District Judge J. Paul Oetken, but the Covid-19 global pandemic has delayed it until later in the year.
In October, David Correia became the first of the four co-defendants in the indictments to plead guilty.
Correia pleaded guilty to two counts of a seven-count superseding indictment in a case where he and Parnas were charged with defrauding investors in a would-be company named “Fraud Guarantee.”
Fruman’s attorney asked the court on Wednesday to sever his joint trial from Parnas because of “spillover prejudice” from the Fraud Guarantee scheme alleged in count seven of the superseding indictment, for which Fruman did not face any new counts.
“If the jury hears evidence that Mr. Parnas was engaged in a scheme to defraud investors, it is highly likely they will conclude that both Mr. Parnas and Mr. Fruman had the requisite intent to violate campaign finance laws,” Blanche wrote.
Kukushkin’s attorney separately asked for severance from other co-defendants, citing “the basis of improper joinder and in order to preserve Mr. Kukushkin’s constitutional due process right to a fair trial.”
Joseph Bondy, a lawyer for Parnas, filed his memo Tuesday, asking that the White House and Justice Department turn over any electronic communications in which they discussed the decision to charge his client with making illegal campaign contributions.
Bondy — himself a prominent cannabis attorney who serves on the Board of Directors for the National Organization for the Reform of Marijuana Laws — also laid out his suspicion that Attorney General William Barr orchestrated Parnas' indictment "as a means to protect the president and thwart his potential testimony in the impeachment inquiry."
The lawyer wants an evidentiary hearing to determine why Vice President Mike Pence and others weren't prosecuted for receiving "improper" campaign contributions.
A spokesperson for the Southern District of New York declined to comment on Wednesday.
Assistant U.S. Attorney Nicolas Roos, who previously landed a three-year sentence for Trump’s ex-fixer Michael Cohen, is in charge of the prosecution with help from AUSAs Rebekah Donaleski and Doug Zolkind.Follow @jruss_jruss
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.