Jury In Paused Hacking Trial To Be Polled On Virus Concerns

By Jack Queen
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Law360 (April 20, 2020, 9:05 PM EDT) -- A California federal court overseeing the trial of a Russian man accused of hacking three tech companies said Monday that it would ask jurors about their health and safety concerns related to COVID-19 before resuming trial May 4.

U.S. District Judge William Alsup approved a questionnaire proposed by federal prosecutors and attorneys for Yevgeniy Nikulin asking jurors about their health and how they feel about resuming the trial in the midst of the pandemic. Judge Alsup also added a question about shelter-in-place orders and whether they would amplify concerns if extended.

The 10-item questionnaire, floated by the parties Friday, will constitute additional voir dire in the trial, which began March 9 but was paused March 18 at Nikulin's request. The questions gauge jurors' health, level of exposure to the coronavirus and availability in light of hardships stemming from the pandemic.

The parties also submitted a memorandum Friday outlining proposed courtroom safety measures, painting a picture of how federal courtrooms across the country might grapple with the dueling demands of speedy justice and public health amid the pandemic.

Trial participants should maintain 6 feet of distance at all times, meaning the courtroom gallery would likely need to serve as overflow seating for jurors, the parties said. That would entail additional screens for evidence and use of another video-equipped courtroom for trial observers, according to the memo.

"Arrangements should be made with the facilities staff in the building for daily cleaning of any rooms used during the course of the trial," the memo continued. "All high-touch surfaces should be disinfected daily. If possible, the court should procure hand sanitizer, disposable gloves, and masks, to have available to jurors and trial participants during proceedings."

Judge Alsup mulled some of the possible logistical problems in an April 9 order, when he pushed the trial to May. He said the court lacked information technology staff to resolve technical hangups and noted that the scarcity of COVID-19 tests meant there was no surefire way to keep the virus from the courtroom.

Several witnesses, including a representative of LinkedIn, one of the alleged victims, said they were not comfortable making the trip to San Francisco for the trial given the state of the pandemic, Judge Alsup noted.

At least two of the 13 jurors and four alternates also told the court they had concerns about participating amid the crisis, and Judge Alsup said he was concerned that some might have forgotten evidence from the pre-outbreak hearings.

Nikulin pled not guilty to hacking charges in March 2018 after the Czech Republic ordered him extradited to the U.S. against the wishes of Russia, which wanted to prosecute him for a separate case.

He had fought his extradition since his October 2016 arrest in Prague on a nine-count indictment charging him with using stolen identities to illegally access computers owned by LinkedIn, Dropbox and defunct social networking site Formspring during a three-month span in 2012, potentially exposing sensitive data on up to 100 million users.

As part of his alleged scheme, Nikulin unlawfully obtained access to the user credentials for employees at LinkedIn and Formspring, which he used to further intrude into company networks. Through an unnamed co-conspirator, he then offered to sell stolen information to other unnamed individuals over the internet for cash, prosecutors say.

Counsel for the parties did not immediately respond to requests for comment Monday.

The government is represented by Michelle J. Kane of the U.S. Attorney's Office for the Northern District of California.

Nikulin is represented by Adam G. Gasner of The Law Office of Adam G. Gasner.

The case is U.S. v. Nikulin, case number 3:16-cr-00440, in the U.S. District Court for the Northern District of California.

--Additional reporting by Dave Simpson. Editing by Abbie Sarfo.

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

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3:16-cr-00440

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October 20, 2016

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