USA v. STONE

Filing 27

NOTICE of Objection to Notice of Designation of Pending Related Criminal case by ROGER JASON STONE, JR (Attachments: # 1 Exhibit Notice of Designation of Related case, # 2 Exhibit DOJ press release, # 3 Text of Proposed Order)(Buschel, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Case No.: 1:19-CR-00018-ABJ

UNITED STATES OF AMERICA,
Plaintiff,
v.
ROGER J. STONE, JR.,1
Defendant.
______________________________
ROGER STONE’S OBJECTIONS TO THE NOTICE OF RELATED CASE AND
MEMORANDUM OF LAW IN SUPPORT OF HIS OBJECTIONS
Defendant, Roger J. Stone, Jr., objects under Local Criminal Rule 57.12 to assignment of
this case as being related to United States of America v. Netyksho, et al. (1:18-cr-00215-ABJ),
and respectfully requests that the Court find that this case is not related to Netyksho, and Order
that this case be randomly reassigned consistent with Local Criminal Rule 57.10.
INTRODUCTION
Random assignment of criminal cases is required in this District pursuant to Local
Criminal Rule 57.10. Random assignment supports fairness and an appearance of fairness by
avoiding the perception that the government is shopping for a preferred district judge. The local
rule supports an essential element of due process to which every defendant is entitled – a fair
trial by a randomly selected and impartial judge.
The government has designated Roger Stone’s case as related to United States v.
Netyksho et. al. No. 18-cr-215 (ABJ). The representation of the government in regards to the
relationship of Stone’s case to the Netyksho case, made under Local Criminal Rule 57.12 is: 1)

1

Roger Stone’s middle name is Joseph, not Jason.

there is a common search warrant; and, 2) there are activities which are a part of the same
alleged criminal event or transaction. (See Exhibit 1 – "Notice of Related Case”).
At first blush and without the benefit of discovery, there is nothing about these cases that
suggests they are suitably related, other than they are both brought by the Office of Special
Counsel. The notice served on defense counsel requires an objection to the designation be filed
within ten days of the arraignment. As a result of this constraint of a timely objection, the
government should be required to disclose all evidence and reasoning used to support its
requested designation since the goal of the local rule is to safeguard the honor of the district
court and protect the rights of defendants like Roger Stone. An analysis of the allegedly “related”
indictments clearly demonstrates there is no nexus of any kind between the two cases.
Consequently, Defendant Stone objects to the designation and requests that he be accorded the
same constitutionally guaranteed due process rights and protections afforded to all criminal
defendants, and that he be randomly assigned a district judge as dictated under the local rules.
FACTUAL ANALYSIS
On July 13, 2018, the Office of Special Counsel filed an indictment against a dozen
Russian nationals alleging conspiracy to commit an offense against the United States. As the
Court’s docket in that case reflects, no proceedings have taken place subsequent to the filing of
the indictment. All of the defendants are alleged to be, or have been, employed by the Main
Intelligence Directorate of the General Staff (“GRU”) of the Russian Federation who conspired
to “‘hack’[ ] into the computers of U.S. persons and entities involved in the 2016 U.S.
presidential election.” (United States v. Netyksho, et al. (1:18-cr-00215-ABJ) (ECF No. 1,
Indictment, ¶ 2.)). The Netyksho indictment outlines how such hacking took place, alleging that
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the defendants collectively used, “[t]he online persona Guccifer 2.0” (Id. ¶ 42) and that they
“launched the public website dcleaks.com.” (Id. ¶ 35).
The Office of Special Counsel further alleged that “on or about August 15, 2016, the
[Russian defendants] posing as Guccifer 2.0, wrote to a person who was in regular contact with
senior members of the presidential campaign of Donald J. Trump, ‘thank u for writing back...do
u find anyt[h]ing interesting the docs I posted? ... The person responded, ‘[p]retty standard’.” (Id.
¶ 44). Later, it was also alleged that some 20,000 stolen emails were transmitted by Guccifer 2.0
to “Organization 1."
It is not alleged that the named Russians had any interest or involvement with the “Person
1" or the “Person 2" identified in Stone’s indictment. None of the defendants in Netyksho are on
the government’s sealed witness list in the case against Roger Stone, nor have there been any
allegations indicating a conspiracy between the Netyksho defendants and Defendant Stone.
Furthermore, there are no accusations of similar criminal conduct, there are activities which are a
part of the same alleged criminal event or transaction, or that the two cases have a “common
search warrant.” See Exhibit – 1.
Defendant Stone has been charged with lying to Congress and witness tampering under
18 U.S.C. §§ 1505, 1001, 1512(b)(1), 2. There is no mention of hacking, stealing, or involvement
with Russia or the Netyksho defendants. In contrast, the Netyksho indictment reads as follows:
“Count One alleges a criminal conspiracy to commit an offense
against the United States through cyber operations by the GRU that
involved the staged release of stolen documents for the purpose of
interfering with the 2016 president election;
Counts Two through Nine charge aggravated identity theft for
using identification belonging to eight victims to further their
computer fraud scheme;
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Count Ten alleges a conspiracy to launder money in which the
defendants laundered the equivalent of more than $95,000 by
transferring the money that they used to purchase servers and to
fund other costs related to their hacking activities through
cryptocurrencies such as bitcoin; and;
Count Eleven charges conspiracy to commit an offense against the
United States by attempting to hack into the computers of state
boards of elections, secretaries of state, and US companies that
supplied software and other technology related to the
administration of elections.”
United States v. Netyksho, et al. (1:18-cr-00215-ABJ) (ECF No. 1,
Indictment).

Indeed, the Department of Justice stated in its press release regarding the Russian
indictment: “There is no allegation in the indictment that any American was a knowing
participant in the alleged unlawful activity or knew they were communicating with Russian
intelligence officers. There is no allegation in the indictment that the charged conduct altered the
vote count or changed the outcome of the 2016 election.” (Exhibit 2 - DOJ, Office of Public
Affairs, Grand Jury Indicts 12 Russian Intelligence Officers for Hacking Offenses Related to the
2016 Election, July 13, 2018).
The indictment in the Stone case alleges that the servers of the Democratic National
Committee were hacked by unspecified “Russian government actors” (ECF No. 1, Stone
Indictment, ¶ 2). It also claims that Defendant Stone was a political consultant employed by the
Trump campaign until August 2015 (Id. ¶ 4), and that “[d]uring the summer of 2016. . .[he]
spoke to senior Trump Campaign officials about Organization 1 and information it might have
had that would be damaging to the Clinton Campaign." (Id. ¶5). The indictment further alleges
that Defendant Stone was “claiming both publicly and privately to have communicated with
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Organization 1" (Id. ¶ 6), and that “[a]fter the 2016 U.S. presidential election, the U.S. House of
Representatives Permanent Select Committee Intelligence opened investigations into Russian
interference in the 2016 U.S. presidential election.” (Id. ¶ 7). A section entitled “Other Relevant
Individuals” is set forth identifying “Person 1" and “Person 2" (Id. ¶¶ 8-9). A long “background”
section is presented where Defendant Stone is alleged to have made many public and private
communications about “Organization 1.” The indictment then turns to the investigation of House
and Senate committees, “[i]n or around 2017." (Id. ¶18).
Roger Stone’s alleged conduct is not connected to any of the “Russian activities” outlined
in the Netyksho indictment. Neither indictment alleges Stone had any communications or
dealings with any of the defendants named in the Netyksho indictment. The conduct charged in
the Stone indictment occurred more than a year after the acts charged in the Netyksho case.
Finally, Stone is not alleged to have had actual knowledge, at the time, about the stolen emails,
only that Stone was trying, unsuccessfully, to get such information from Person 1 and/or Person
2.
OBJECTIONS TO THE ASSIGNMENT
A.

Violates the Local Rule
There is a dearth of case law on Local Rule 57.12. The case law regarding the local civil

rule offers some guidance to the Court since there is a similarity between “grow out of the same
event or transaction. . .” under Local Civil Rule 40.5(a)(3) and “activities which are part of the
same alleged criminal event or transaction,” under Local Criminal Rule 57.12(a)(1)(iii). “The
general rule governing all new cases filed in this courthouse is that they are to be randomly
assigned.” Tripp v. Exec. Office of President, 196 F.R.D. 201, 202 (D.D.C.2000). The party
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seeking to avoid the random assignment bears the burden of showing the cases are related under
the appropriate rule. See Dale v. Executive Office of the President, 121 F. Supp.2d 35, 37
(D.D.C. 2000). In this case, it is the government that must overcome that presumption.
The “fundamental rationale” for random assignment is “to ensure greater public
confidence in the integrity of the judicial process” by “guarantee[ing] fair and equal distribution
of cases to all judges, avoid[ing] public perception or appearance of favoritism in assignments,
and reduc[ing] opportunities for judge-shopping.” Tripp, 196 F.R.D. at 202. A party’s suggestion
of a designation of related case is the exception. See United States v. Volvo Const. Equip. AB,
922 F. Supp. 2d 67, 68 (D.D.C. 2013). The goal of joining two related cases by conserving
judicial resources only occurs by having a district judge familiar with the facts and legal issues of
the original case. See United States v. Smith, CRIM.A.90-023501RCL, 1990 WL 91611, at *2
(D.D.C. June 19, 1990) (unpublished). This is balanced against the reality or perception that a
party is “judge shopping,” a practice which has been for the most part universally condemned.
See United States v. Haldeman, 559 F.2d 31, 134 n. 297 (D.C. Cir. 1976).
This case is not related to United States v. Netyksho since no American actors are alleged
in that case to have engaged in wrongdoing. Additionally, the activities in Netyksho ended a year
before those allegedly undertaken by Mr. Stone even began. They do not relate to a superseding
indictment, nor is there more than one indictment that has been filed or pending against the same
defendant. The Netyksho case alleges a theft not involving Mr. Stone, who, instead is alleged to
have lied about issues unrelated to the actions taken by the Netyksho defendants. These two cases
are not likely to arise from a common wiretap, search warrant, or activities that are part of the
same alleged criminal event or transaction. They do not even involve the same issues or facts.
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See L.Crim.R. 57.12. Consequently, this Court has not accumulated “institutional” knowledge
over another. There is not one single fact alleged in either indictment about the facts in the other
indictment, other than that the Russians stole emails that Stone, a year later, allegedly lied to
Congress about regarding his failed efforts to find out about them. Thus not a single one of the
three criteria exists that is necessary for relatedness to be found.
In addition, even if this were not true, no other proceedings have been held in the
allegedly-related case, and we aver there never will be; and thus, there is absolutely no judicial
interest served by relating these two cases. Furthermore, failure to sustain Defendant Stone’s
objection or grant his motion will result in a due process violation of his constitutionally
protected rights.
B.

Violates Due Process
Criminal defendants are constitutionally guaranteed the right to due process. See U.S.

CONST. amends. IV, V, and VI. Judge shopping necessarily violates these rights. In the present
instance, without following the court’s rules, Mr. Stone will be denied due process. In a case
considering a rule of a different type, the Supreme Court has found that a party’s rights are
violated when the other party is advantaged when a tribunal declines to follow its own rules.
Ballard v. Commissioner of Internal Revenue, 544 U.S. 40, 59 (2005) (tax court case). There is a
due process element preserved by Local Rules 57.12 as well as the presumption of random
assignment. Since there is no ostensible reason under the law to relate these two cases and
recognizing that there has been no exchange of discovery yet, the government should be required
to explain how it is not otherwise engaging in judge shopping. Judge shopping is completely
contrary to the protects afforded to criminal defendants, and even worse creates an appearance of
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impropriety and violates a defendant’s due process rights without regard to the impartiality of the
judge selected by a party. See Haldeman, 559 F.2d at 134 n. 297.
CONCLUSION
For all of the foregoing reasons Defendant Stone’s objection should be sustained, and this
case should be sent to the Calendar and Case Management Committee for random assignment.

Respectfully submitted,

L. PETER FARKAS
HALLORAN FARKAS & KITTILA, LLP
DDC Bar No.: 99673
1101 30th Street, NW
Suite 500
Washington, DC 20007
Telephone: [phone]
Fax: [phone]
[e-mail]

ROBERT C. BUSCHEL
BUSCHEL GIBBONS, P.A.
FL Bar No.: 006436
One Financial Plaza, Suite 1300
100 S.E. Third Avenue
Fort Lauderdale, FL 33394
Telephone: [phone]
Fax: [phone]
[e-mail]
Admitted pro hac vice

By: Bruce S. Rogow
BRUCE S. ROGOW
FL Bar No.: 067999
TARA A. CAMPION
FL Bar: 90944
BRUCE S. ROGOW, P.A.
100 N.E. Third Avenue, Ste. 1000
Fort Lauderdale, FL 33301
Telephone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Admitted pro hac vice
GRANT J. SMITH
STRATEGYSMITH, PA
FL Bar No.: 935212
401 East Las Olas Boulevard
Suite 130-120
Fort Lauderdale, FL 33301
Telephone: [phone]
[e-mail]
Admitted pro hac vice

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 8, 2019, I electronically filed the foregoing with
the Clerk of Court using CM/ECF. I also certify that the foregoing is being served this day on all
counsel of record or pro se parties, via transmission of Notices of Electronic Filing generated by
CM/ECF.
BUSCHEL GIBBONS, P.A.
___/s/ Robert Buschel_______________
Robert C. Buschel

United States Attorney’s Office for the
District of Columbia
MICHAEL JOHN MARANDO
JONATHAN IAN KRAVIS
U.S. ATTORNEY'S OFFICE FOR THE
DISTRICT OF COLUMBIA
555 Fourth Street, NW
Washington, DC 20530
Telephone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

United States Depart of Justice
Special Counsel’s Office
AARON SIMCHA JON ZELINSKY
JEANNIE SCLAFANI RHEE
ANDREW DANIEL GOLDSTEIN
LAWRENCE RUSH ATKINSON
U.S. DEPARTMENT OF JUSTICE
SPECIAL COUNSEL’S OFFICE
950 Pennsylvania Avenue, NW
Washington, DC 20530
Telephone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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