SDNY Judge Lets Sick Juror Deliberate Via Videoconference

By Stewart Bishop
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Law360, New York (March 16, 2020, 1:22 PM EDT) -- A New York federal judge on Monday took the unprecedented step of allowing an ill juror to videoconference into deliberations in the U.S. sanctions trial of Iranian businessman Ali Sadr Hashemi Nejad, overruling prosecutors who said the arrangement could taint the case.

U.S. District Judge Alison Nathan in Manhattan made the decision amid the coronavirus pandemic after two jurors in the case reported feeling unwell. One was dismissed for cause during deliberations, while another was allowed to continue participating by videoconference.

The judge overruled prosecutors who had moved for a mistrial rather than continuing with one juror joining in remotely.

The jury will decide the fate of Sadr, 40, a member of the family behind Iranian conglomerate Stratus Group. Sadr is accused of using companies in Turkey and Switzerland with Swiss bank accounts to evade U.S. sanctions on Iran and launder $115 million in profits from a $476 million deal to build an infrastructure project in Venezuela.

Judge Nathan told the parties Monday that both of the jurors in question reported "some general unwell feeling symptoms" and both had decided not to come in out of an abundance of caution.

Assistant U.S. Attorney Michael Krouse voiced concern that unlike the 10 jurors at the courthouse, the juror participating in deliberations via videoconference would likely have access to devices and the internet which could be used to obtain outside materials, as opposed to the rest of the isolated panel. An attorney for Sadr, Brian M. Heberlig, said the defense was not prepared to consent to proceed with only 10 jurors instead.

Both the government and the defense acknowledged they could find "no authority for or against" going forward with one juror participating by videoconference.

Judge Nathan directed Sadr to sign a written stipulation consenting to the unusual deliberating procedure, and he waived his right to appeal on the basis of deliberations going forward with 10 jurors physically present in the jury room and one being videoconferenced in.

"I will say that we are in extraordinary circumstances and given the situation it is appropriate to proceed thusly," Judge Nathan said.

The U.S. District Court for the Southern District of New York on Friday suspended all new trials amid the COVID-19 pandemic, while a security guard in the Manhattan U.S. Attorney's Office tested positive for the virus.

Chief U.S. District Judge Colleen McMahon indefinitely postponed all civil and criminal trials in the Southern District that were scheduled to begin before April 27.

Ongoing trials in the Southern District are unaffected and existing grand juries will continue, the judge said. Hearings, conferences and bench trials may continue at each judge's discretion, Chief Judge McMahon said, but they are "strongly encouraged to conduct court proceedings by telephone or video conferencing where practicable."

As of Monday afternoon, there were 950 people who had tested positive for COVID-19 in New York state, with 463 of those cases located in New York City.

Monday's events mark the second time that Sadr's trial has been interrupted by illness. Shortly after the trial began, it was revealed that a member of the jury pool who had not been selected for service had potentially been exposed to the new coronavirus.

That juror had been notified by health authorities that they had attended the same temple on the same day as someone who had been diagnosed with COVID-19, prompting Judge Nathan to switch courtrooms so her usual courtroom could be disinfected and cleaned as a precautionary measure. The potential juror was asked to self-quarantine, she said.

Prosecutors claim Stratus Group, controlled by Sadr's father, Mohammad Sadr Hashemi Nejad, Sadr and their family, in 2006 incorporated a company called Iranian International Housing Corp., which contracted with a subsidiary of Venezuelan state-owned energy company Petróleos de Venezuela SA to build the 7,000-unit housing infrastructure project.

Sadr and others then arranged for Venezuela to make U.S. dollar payments to Swiss bank accounts belonging to a trading house that Sadr incorporated in Switzerland, as well as a Turkish construction company — Stratus International Contracting JS — using lenders in New York as intermediary banks, according to prosecutors.

On Monday afternoon, the jury convicted Sadr of conspiring to violate the International Emergency Economic Powers Act, conspiracy to defraud the U.S., bank fraud, conspiracy to commit bank fraud and money laundering.

The government is represented by Jane Kim, Michael Krouse and Stephanie Lake of the U.S. Attorney's Office for the Southern District of New York and Garrett Lynch of the New York County District Attorney's Office.

Sadr is represented by Reid Weingarten, Brian M. Heberlig, Bruce C. Bishop and Nicholas P. Silverman of Steptoe & Johnson LLP.

The case is U.S. v. Sadr, case number 1:18-cr-00224, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Frank G. Runyeon. Editing by Alyssa Miller.

Update: This article has been updated with additional information.

For a reprint of this article, please contact reprints@law360.com.

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