Securities and Exchange Commission v. Fujinaga et al

Filing 580

ORDER granting 579 Motion to Extend Time Re: 577 Motion, Responses due by 3/16/2022. Signed by Judge James C. Mahan on 2/23/2022. (Copies have been distributed pursuant to the NEF - HAM)

Case 2:13-cv-01658-JCM-CWH Document 579 Filed 02/16/22 Page 1 of 6
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RENE L. VALLADARES
Federal Public Defender
Nevada State Bar No. 11479
Wendi L. Overmyer
Cristen C. Thayer
Nevada State Bar No. 12873
Assistant Federal Public Defenders
411 E. Bonneville, Ste. 100
Las Vegas, Nevada 89101
[phone]
[e-mail]
[e-mail]
Attorneys for Edwin Fujinaga

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Securities and Exchange
Commission,
Plaintiff,

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v.
Edwin Yoshihiro Fujinaga, and MRI
International, Inc.,

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Defendants,

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and

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Case No. 2:13-cv-01658-JCM-CWH
Motion for extension of time for
Defendant Edwin Fujinaga’s counsel
of record in United States v.
Fujinaga, D. Nev. 2:15-cr-00198-GMNNJK-1 to file objections to the
Receiver’s motion for instructions
for the disposition of documents
recovered (ECF No. 577)

CSA Service Center, LLC, The
Factoring Company, June Fujinaga,
and The Yunju Trust,

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Relief Defendants.

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Certification: This motion is timely filed under LR IA 6-1(a).

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Counsel of record for Defendant Edwin Fujinaga in United States v.

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Fujinaga, D. Nev. 2:15-cr-198-GMN-NJK-1, and United States v. Fujinaga, 9th

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Cir. Nos. 19-10222 and 21-10155, request a 30-day extension to file objections

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Case 2:13-cv-01658-JCM-CWH Document 579 Filed 02/16/22 Page 2 of 6
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currently due on February 16, 2022, to the SEC Receiver’s motion for instructions

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for the disposition of documents recovered pertaining to this case. ECF No. 577.

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The new requested deadline for objections is March 16, 2022.

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This is the first motion requesting an extension to file objections by

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Defendant Edwin Fujinaga’s counsel of record in United States v. Fujinaga, D.

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Nev. 2:15-cr-198-GMN-NJK-1, and United States v. Fujinaga, 9th Cir. Nos. 19-

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10222 and 21-10155 to the SEC Receiver’s motion for instructions for the

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disposition of documents recovered. ECF No. 577. The review and preservation

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of the documents and hard drives seized, called “Estate Documents” by the

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Receiver, are a central issue in Mr. Fujinaga’s pending consolidated direct
appeal.
2.

In his pending consolidated direct appeal, Mr. Fujinaga seeks relief

from 20 counts of conviction and a 50-year sentence imposed on June 17, 2019,
following pretrial litigation and a 17-day jury trial for allegedly operating an
international fraud scheme involving over $1.5 billion. The jury convicted Mr.
Fujinaga of eight counts of mail fraud, nine counts of wire fraud, and three
counts of money laundering. The contested 50-year sentence amounts to life
imprisonment for Mr. Fujinaga, who is 74 years old.
3.

The direct appeal challenges the government’s failure to review the

“Estate Documents” consisting of over a decade of international financial and
business transactions, among other challenges. Extensive pretrial litigation and
hearings involved the “Estate Documents” at issue in the SEC Receiver’s present

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motion, specifically the government’s Brady obligations to review and disclose

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Brady material contained in the “Estate Documents.”

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4.

On February 5, 2021, in Fujinaga, D. Nev. 2:15-cr-198-GMN-NJK-1,

undersigned counsel filed a Motion for Order Requiring the Government to Fulfill

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its Obligation to Preserve Brady Evidence (ECF No. 415), addressing the

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disputed, unreviewed “Estate Documents” at issue in Mr. Fujinaga’s direct

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appeal—the same documents that are also at issue in the SEC Receiver’s present

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motion. The district court denied Mr. Fujinaga’s motion to preserve evidence on

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May 14, 2021, without a hearing. Mr. Fujinaga timely appealed to the Ninth

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Circuit, United States v. Fujinaga, 9th Cir. No. 21-10155. The Ninth Circuit

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consolidated the appeal with his already pending direct appeal of his conviction.

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5.

In the consolidated appeal, Mr. Fujinaga asks the Ninth Circuit to:

vacate the district court’s order that would allow destruction of unreviewed
seized evidence; find the government violated its Brady duties, and vacate Mr.
Fujinaga’s convictions. Alternatively, Mr. Fujinaga asks the Ninth Circuit to
issue an injunction precluding destruction of the unreviewed seized items
pending final resolution Mr. Fujinaga’s consolidated appeals. Briefing in the
consolidated direct appeal was completed on December 21, 2021. App. Dkt. 85.
6.

Today, February 16, 2022, the Ninth Circuit heard argument in Mr.

Fujinaga’s consolidated direct appeal, during which the parties addressed his
challenge to the government’s Brady obligations for the “Estate Documents” at
issue in the SEC Receiver’s present motion.
7.

A 30-day extension for the filing of objections to the SEC Receiver’s

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motion for instructions for the disposal of the “Estate Documents” is therefore

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necessary due to preparations for oral argument in Mr. Fujinaga’s direct appeal,

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to analyze the Receiver’s SEC position, and permit undersigned counsel to fully

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research and address the ongoing multi-agency litigation in this case.

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8.

Mr. Fujinaga is in the custody of the Bureau of Prisons (BOP) at the

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Victorville Medium II Federal Correctional Institution in California, with a

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projected release date of July 5, 2061. Due to a recent national BOP prison

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lockdown imposed January 31, 2022, inmates have been unable to receive or

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place legal calls.1 The extension is thus also necessary for undersigned counsel to

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consult with Mr. Fujinaga regarding objections to the SEC Receiver’s motion.

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9.

On February 15, 2022, undersigned counsel contacted counsel for

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the SEC Receiver, Attorney Michael F. Lynch, regarding any objections to this

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extension. Undersigned counsel has not yet received a response.

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For these reasons, Mr. Fujinaga requests this Court extend the deadline by
30 days for the filing of objections to the SEC Receiver’s motion for instructions
for the disposition of documents recovered (ECF No. 577). A proposed order is
attached in compliance with LR IA 6-2.
Dated: February 16, 2022.
Respectfully submitted,
RENE L. VALLADARES
Federal Public Defender

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By: /s/ Wendi L. Overmyer
Wendi L. Overmyer
Assistant Federal Public Defender

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/s/ Cristen C. Thayer
Cristen C. Thayer
Assistant Federal Public Defender

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Attorneys for Edwin Fujinaga in
D. Nev. No. 2:15-cr-198-GMN-NJK-1

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See Federal Bureau of Prisons, Temporary Security Measures Update
(Feb. 8, 2022), available at https://www.bop.gov/resources/news/20220201_
security_measures.jsp; see also Walter Pavlo, Federal Bureau of Prisons on
National Lockdown after Deadly Fights at USP Beaumont, Forbes (Feb. 2, 2022),
available at https://www.forbes.com/sites/walterpavlo/2022/02/02/federal-bureauof-prisons-on-national-lockdown-after-deadly-fights-at-usp-beaumont/?
sh=e8d503b5af2e.
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Case 2:13-cv-01658-JCM-CWH Document 579 Filed 02/16/22 Page 5 of 6
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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Securities and Exchange
Commission,

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Plaintiff,

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v.

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Edwin Yoshihiro Fujinaga, and MRI
International, Inc.,

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Defendants,

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Case No. 2:13-cv-01658-JCM-CWH
Order granting motion for extension
of time for Defendant Edwin
Fujinaga’s counsel of record in
United States v. Fujinaga, D. Nev.
2:15-cr-00198-GMN-NJK-1 to file
objections to the Receiver’s motion
for instructions for the disposition of
documents recovered (ECF No. 577)

and
CSA Service Center, LLC, The
Factoring Company, June Fujinaga,
and The Yunju Trust,
Relief Defendants.

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IT IS HEREBY ORDERED that the February 16, 2022, deadline for the

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filing of any objections by Defendant Edwin Fujinaga’s counsel of record in

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United States v. Fujinaga, D. Nev. 2:15-cr-198-GMN-NJK-1, and United States v.

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Fujinaga, 9th Cir. Nos. 19-10222 and 21-10155 to the SEC Receiver’s motion for

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instructions for the disposition of documents recovered (ECF No. 577) is vacated

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and extended by 30 days until March 16, 2022.

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Dated February 23, 2022. February 2022.
this ____ day of

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____________________________________________
UNITED STATES DISTRICT COURT JUDGE

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Case 2:13-cv-01658-JCM-CWH Document 579 Filed 02/16/22 Page 6 of 6
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Service Certificate
I certify that on February 16, 2022, I electronically filed the foregoing with

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the Clerk of the Court for the United States District Court for the District of

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Nevada by using the appellate CM/ECF system. Participants that are registered

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CM/ECF users will be served by the appellate CM/ECF system. The following

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non-CM/ECF participants will be served by U.S. Mail: Mr. Edwin Fujinaga.

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/s/ Cecilia Valencia
Federal Public Defender Employee

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