NY Feds' Last-Ditch Bid To Delay Criminal Bench Trial Fails

By Stewart Bishop
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Law360 (September 2, 2020, 9:38 PM EDT) -- A New York federal judge on Tuesday refused a last-ditch bid by prosecutors to delay a criminal bench trial of a former U.S. Securities and Exchange Commission staffer accused of pilfering information about a pending investigation into a private equity firm before he left to join the company.

U.S. District Judge Gary Brown last week granted the unusual application from Michael Cohn for a bench trial, over the objections of the government, on charges of obstructing the SEC investigation, unauthorized computer access and disclosing confidential information without authorization.

Undeterred, prosecutors on Tuesday asked Judge Brown to stay his orders allowing a bench proceeding to continue until the end of October, saying it "would allow the court and the parties a more thorough opportunity to assess the possibility of proceeding to trial by jury."

Judge Brown made short work of the request, denying it in a brief docket order the same day.

"The court agrees with the observation of defense counsel that 'delaying the trial until the end of October increases the risk that the coming flu season combined with a resurgence of the COVID-19 pandemic will curtail the district[']s ability to hold any trials,'" the judge said.

Cohn was charged last year with improperly accessing information about an SEC investigation into GPB Capital before he joined the private equity firm in 2018.

However, his trial has been delayed because of the suspension of jury trials in the Eastern District of New York in light of the COVID-19 pandemic. Despite opposition from the government, which normally has to consent for a criminal bench trial to proceed, Judge Brown greenlighted Cohn's application for a non-jury proceeding, citing "unusual, if not unique, circumstances" as reason for granting Cohn's request.

Prosecutors on Tuesday sought to keep the notion of a jury trial for Cohn alive, saying a delay until late October would allow the parties time to reassess the possibility of going forward with a jury trial and would be in the interests of justice. The government cited logistical difficulties in corralling an estimated 13 witnesses, most from out of state, for a bench proceeding which Judge Brown has said will commence shortly after a Sept. 8 conference.

Attorneys for Cohn from Katten Muchin Rosenman LLP replied the same day that the government was only speaking "for itself," and that Cohn doesn't need additional time to gauge whether to go forward with a jury or non-jury trial.

"The government's request is a strategic maneuver designed to obtain more time to prepare for trial. The government has had two years to prepare its case," Cohn's attorneys said.

A lawyer for Cohn, Scott Resnik, told Law360 on Wednesday that his client was heartened by Judge Brown's decision to rebuff prosecutors' motion and keep his case on a fast track for a bench trial.

"The defense team is looking forward to trying this case and will be ready to proceed on any date set by the court," Resnik said.

A spokesman for the U.S. Attorney's office for the Eastern District of New York declined to comment.

The trial appears to be set to go forward as a hybrid proceeding consisting of in-person and remote testimony.

Judge Brown in July floated the possibility of proceeding via bench trial, given the uncertainty about when the court could go forward with a jury trial for Cohn, who has been facing charges since February 2019. After discussions with counsel, Cohn agreed to waive his right to a trial by jury due to "the extraordinary circumstances presented by the COVID-19 pandemic."

For their part, prosecutors strenuously opposed a bench trial. Normally, the government's consent is required for a federal criminal case to be determined by a judge rather than a jury, however Judge Brown noted that in extraordinary situations, the court is empowered to conduct a bench trial over prosecutors' objections.

In allowing the bench proceeding, the judge cited "unusual, if not unique, circumstances," including the length of time that charges have been pending against Cohn, the complexity of the case, as well as Cohn's health issues amid the pandemic.

The government is represented by Lauren Elbert and Artie McConnell of the U.S. Attorney's Office for the Eastern District of New York.

Cohn is represented by Scott Resnik, Michael M. Rosensaft and Vikas Khanna of Katten Muchin Rosenman LLP.

The case is U.S. v. Cohn, case number 2:19-cr-00097, in the U.S. District Court for the Eastern District of New York.

--Editing by Amy Rowe.

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

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