United States v. Manafort

• Decision Date: 31 July 2018
• Docket Number: No. 18-3037,18-3037
• Parties: UNITED STATES of America, Appellee v. Paul John MANAFORT, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

897 F.3d 340

UNITED STATES of America, Appellee

v.Paul John MANAFORT, Jr., Appellant.

No. 18-3037

United States Court of Appeals, District of Columbia Circuit.

Decided July 31, 2018

Frank P. Cihlar, Richard W. Westling, and Thomas E. Zehnle were on appellant’s Memorandum of Law and Fact.

Andrew Weissman and Scott A.C. Meisler, Attorneys, U.S. Department of Justice, were on appellee’s Memorandum of Law and Fact. Michael R. Dreeben and Adam C. Jed, Attorneys, U.S. Department of Justice, entered appearances.

Before: Tatel, Griffith and Wilkins, Circuit Judges.

Wilkins, Circuit Judge:

We consider an appeal of a pretrial detention order issued after revoking release due to the defendant’s alleged commission of new crimes of witness tampering while released. We affirm.

I.

On October 27, 2017, the United States, by and through a Grand Jury convened by Special Counsel Robert S. Mueller, III, indicted Appellant Paul Manafort on nine criminal charges, including conspiracy against the United States, money laundering, failure to file reports of foreign bank and financial accounts, acting as an unregistered agent of a foreign principal in violation of the Foreign Asset Registration Act ("FARA"), and making false and misleading statements. See Indictment, United States v. Manafort , No. 17-cr-201 (D.D.C. Oct. 30, 2017), ECF No. 13. Following his arrest and arraignment, the District Court released Appellant to home confinement with various conditions. See Order Setting Conditions for High Intensity Supervision Program, United States v. Manafort , No. 17-cr-201 (D.D.C. Oct. 30, 2017), ECF No. 9. Among the conditions, the release order stated that Appellant was "not to commit any criminal offense" while on release, and "a rearrest for any offense based upon probable cause may be grounds for revoking [ ] release." Id. at 2. This condition—to not commit any further crimes—was imposed yet again when his release conditions were modified a few weeks later. See Order, United States v. Manafort , No. 17-cr-201 (D.D.C. Dec. 15, 2017), ECF No. 95.

As discussed below, the alleged violation of this release condition is the core of this appeal.

In the meantime, the District Court issued a "gag order," which commanded all parties involved in the case "to refrain from making further statements to the media or in public settings that are ‘substantially likely to have a materially prejudicial effect on this case,’ " without objection. Order ("Gag Order") at 1, United States v. Manafort , No. 17-cr-201 (D.D.C. Nov. 8, 2017), ECF No. 38 (quoting Gentile v. State Bar of Nev. , 501 U.S. 1030, 1076, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) ). In a filing relating to conditions of release, the Government proffered that Appellant had violated the Gag Order by "ghostwriting an editorial ... regarding his political work for Ukraine." See Gov.’s Opp’n to Def.’s Mot. to Modify Conditions of Release at 2, United States v. Manafort , No. 17-cr-201 (D.D.C. Dec. 4, 2017), ECF No. 73. On December 5, the District Court ordered Appellant to show cause why he had not violated the Gag Order. See Minute Order, United States v. Manafort , No. 17-cr-201 (D.D.C. Dec. 5, 2017). Appellant responded that he merely had "edited" the op-ed "to ensure its accuracy" and that the Ukrainian editorial was unlikely to reach an American audience, so it did not pose a substantial likelihood of a materially prejudicial effect. See Def.’s Reply Mem. to Gov.’s Opp’n to Mot. to Modify Conditions of Release and Resp. to Minute Order, United States v. Manafort , No. 17-cr-201 (D.D.C. Dec. 7, 2017), ECF No. 79. The District Court discharged the show-cause order, but noted that it would "view similar conduct in the future to be an effort to circumvent and evade the requirements" of the Gag Order. Status Conference Tr. at 12, United States v. Manafort , No. 17-cr-201 (D.D.C. Dec. 11, 2017), ECF No. 112. The District Court also stated that it would consider the issue of the editorial "in connection with [its] consideration of the bond issue." Id.

The investigation of Appellant apparently continued, because the Special Counsel filed a superseding indictment against Appellant on February 23, 2018. See Superseding Indictment, United States v. Manafort , No. 17-cr-201 (D.D.C. Feb. 23, 2018), ECF No. 202. The February 23 Superseding Indictment included new details about how Appellant allegedly acted as an unregistered agent of a foreign principal and related offenses. Specifically, the indictment alleged that Appellant and his associates retained former senior European politicians, which they referred to as the "Hapsburg group," to advocate on behalf of certain Ukrainian principals by conducting "outreach to United States politicians and press" and by "lobbying in the United States." Id. ¶¶ 29-30.

The indictment in our District Court is not the only federal criminal case pending against Appellant. On February 22, 2018, the Special Counsel filed a separate superseding indictment against Appellant in the United States District Court for the Eastern District of Virginia, alleging tax evasion, failure to report foreign assets, and bank fraud. United States v. Manafort , No. 18-cr-83 (E.D. Va. Feb. 22, 2018), ECF No. 9. (Apparently venue for these charges does not lie in the District of Columbia, and Appellant declined to waive venue. See Appellee’s Br. 6 n.4.) The District Court for the Eastern District of Virginia entered a pretrial release order on March 9, 2018, which contained a condition not found in the District of Columbia release orders, namely that Appellant "must avoid all contact, directly or indirectly, with any person who is a victim or witness in the investigation or prosecution of the defendant." Order ("EDVA Stay-Away Order") at 3, United States v. Manafort , No. 18-cr-83 (E.D. Va. Mar. 9, 2018), ECF No. 25.

This brings us to the events directly underlying the instant appeal. On June 4, 2018, the Government moved to revoke Appellant’s release and remand him into custody pending trial pursuant to 18 U.S.C. § 3148. See Gov.’s Mot. to Revoke or Revise Def.’s Current Order of Pretrial Release, United States v. Manafort , No. 17-cr-201 (D.D.C. June 4, 2018), ECF No. 315. The Government argued that Appellant violated the terms of his release "by attempting to tamper with potential witnesses" in violation of 18 U.S.C. § 1512(b)(1). Id. at 1. The core allegations of the Government’s motion related to "[t]wo individuals who were principals of a public-relations company [that] acted as intermediaries between Manafort, [an associate then identified as Person A], co-defendant Richard Gates, and the Hapsburg group." Id. at 4. The Government contended that Appellant "repeatedly contacted" these two witnesses—Persons D1 and D2—"in an effort to secure materially false testimony concerning the activities of the Hapsburg group." Id. at 5. As detailed in FBI Agent Brock Domin’s declaration, filed with the Government’s revocation motion, the Government alleges that Appellant attempted to contact D1 and D2 on multiple occasions from February 24, 2018, to April 4, 2018. Decl. in Supp. of Gov’s Mot. to Revoke or Revise Def.’s Current Order of Pretrial Release ("Domin Decl."), United States v. Manafort , No. 17-cr-201 (D.D.C. June 4, 2018), ECF No. 315-2. These attempts included a call to D1 in which "Manafort stated that he wanted to give Person D1 a heads-up about Hapsburg," a message Appellant sent to D1 via an encrypted application transmitting a link to a news story about the February 23 Superseding Indictment with a note that "[w]e should talk. I have made clear that they worked in Europe," and text messages from Person A to D1 and D2 conveying that "P want[ed] to give [D1] a quick summary that he says to everybody (which is true) that our friends never lobbied in the US, and the purpose of the program was EU." Domin Decl. ¶¶ 14-17. Other messages conveyed Appellant’s interest in contacting D1 and D2. Id. ¶ 18.

Significantly, both D1 and D2 told Agent Domin that the Hapsburg group lobbied in the United States, not just in Europe. Id. ¶¶ 19-20. Thus, "D1 understood [Appellant’s] messages to be an effort to ‘suborn perjury.’ " Id. ¶ 19. Similarly, D2 understood Appellant’s outreach as an effort to get D1 to tell the members of the Hapsburg group that if they "were contacted by anyone, they should say that their lobbying ... work was exclusively in Europe," id. ¶ 20, even though that was not true.

A few days after filing the motion to revoke Appellant’s release, the Special Counsel filed a second Superseding Indictment. Superseding Indictment, United States v. Manafort , No. 17-cr-201 (D.D.C. June 8, 2018), ECF No. 318. The June 8 Superseding Indictment named Appellant’s associate Konstantin Kilimnik as Person A, who coordinated with D1 regarding lobbying for Ukraine, and it charged Appellant and Kilimnik with obstruction of justice and conspiracy to obstruct justice in violation of 18 U.S.C. § 1512(b)(1) ("witness tampering"). Id.

Appellant opposed the Government’s efforts to detain him. He argued that the accusations of witness tampering rested "on the thinnest of evidence" because the alleged communications did not "reflect an intent to corruptly influence a trial witness." Def.’s Opp’n to Gov.’s Mot. to Revoke or Revise the Current Order of Pretrial Release at 1-2, United States v. Manafort , No. 17-cr-201 (D.D.C. June 8, 2018), ECF No. 319. Rather, Appellant insisted that the few substantive communications were "entirely consistent with Mr. Manafort’s stated position and repeated assertion of his innocence." Id. at 4. Appellant also argued that he was not precluded from communicating with anyone, including possible witnesses, by the District of Columbia release orders, and he was unaware of which individuals would be potential witnesses in any event. Id. at 7-8.

After convening a hearing and allowing extensive argument by both sides, the District Court granted the Government’s motion and ordered Appellant detaine...