United States v. Griffith

• Decision Date: 27 January 2021
• Docket Number: 20-cr-15 (PKC)
• Citation: 515 F.Supp.3d 106
• Parties: UNITED STATES of America v. Virgil GRIFFITH, Defendant.
• Court: U.S. District Court — Southern District of New York

515 F.Supp.3d 106

UNITED STATES of America

v.Virgil GRIFFITH, Defendant.

20-cr-15 (PKC)

United States District Court, S.D. New York.

Signed January 27, 2021

Kimberly Jane Ravener, Kyle Adam Wirshba, Michael Kim Krouse, United States Attorney's Office, New York, NY, for United States of America.

Brian Edward Klein, Sam Meehan, Waymaker LLP, Keri Curtis Axel, Baker Marquart LLP, Los Angeles, CA, Sean Stephen Buckley, Kobre & Kim LLP, New York, NY, for Defendant.

OPINION AND ORDER

CASTEL, U.S.D.J.

Defendant Virgil Griffith is charged in an indictment with conspiring to violate the International Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. §§ 1701 – 1706. (Doc 9 at ¶ 1.) The indictment alleges that an object of the fifteen-month conspiracy was to provide services to the Democratic People's Republic of North Korea ("DPRK") without the required government approvals. (Id. at ¶ 2.) He now moves to dismiss the indictment or, alternatively, demands a bill of particulars.

Defendant Griffith's motions and the government's speaking response rely on facts that are not alleged in the grand jury's indictment. Among the extraneous materials are emails, documents, transcripts of remarks by Griffith made in the DPRK, audio recordings of Griffith, statements made to the Federal Bureau of Investigation ("FBI") and the pre-indictment complaint submitted in support of an arrest warrant. In the main, the materials were produced by the government to Griffith. On the motions, the parties seek to draw inferences favorable to their positions from these materials.

Sometimes it is necessary to state the obvious. If a grand jury returns a lawful indictment that provides adequate notice and states a federal crime, a defendant who pleads not guilty ordinarily must proceed to trial in order to be vindicated. There is no procedure, generally speaking, for pretrial summary adjudication of a federal criminal prosecution. In part, this is because of deference to the grand jury's finding of probable cause, the high burden of proof imposed on the government, the relatively limited discovery required under Rule 16, Fed. R. Crim. P., and the timing requirement under the Jencks Act for production of witness statements, 18 U.S.C. § 3500(a).

Examining the indictment in light of the parties’ arguments, the Court concludes that it provides adequate notice of the charges against Griffith sufficient to enable him to prepare for trial and, if it becomes necessary, plead double jeopardy as a defense. Further, upon review of the law governing the offense conduct, the indictment states a federal crime and violates no constitutional prohibition. Thus, the motion to dismiss will be denied. Griffith's demand for a bill of particulars will also be denied.

BACKGROUND

Griffith asserts that he is an American citizen from Tuscaloosa, who at the time of the acts underlying the indictment, was domiciled in Singapore working for the Ethereum Foundation as a Senior Researcher. (Doc 65 (D. Mem.) at 8.) His position was similar to a business development manager for the Foundation. (Id. at 9.) As part of his employment and interest in cryptocurrencies, Griffith spoke and gave presentations at various panels or conferences about the technology. (Id.)

In August 2018, Griffith learned about a cryptocurrency conference in North Korea. (D. Mem. at 10.) Since early 2018, Griffith wanted to establish an Ethereum environment in the DPRK, at one point texting a colleague, "we'd love to make an Ethereum trip to the DPRK and setup an Ethereum node.... It'll help them circumvent the current sanctions on them." (Doc 72 (G. Mem.) at 12.) Griffith also sent texts to a colleague speculating that while he was not sure why the DPRK was interested in cryptocurrencies, it was "probably avoiding sanctions." (Id.)

In January 2019, Griffith applied to the State Department for permission to travel to the DPRK, informing them that he would speak at a cryptocurrency conference about "the applications of blockchain technology to business and anti-corruption." (D. Mem. at 11; Doc 1 at ¶ 5.) The State Department denied his request, though according to the defense, they did not inform him that traveling to DPRK or participating in the conference would violate United States law. (Id.) Griffith was determined to attend despite the denial, and sought the approval of the DPRK UN Mission in Manhattan. He sent the mission (via email) copies of his CV, passport, and explained his desire to attend the conference. (G. Mem. at 10.) He was granted a visa a month later.

Griffith flew to the DPRK on April 18, 2019. The conference was held from April 23 to April 24. He flew back to Singapore on April 25. (G. Mem. at 11.) The parties characterize the nature of Griffith's presentation differently. Griffith claims that he spoke before approximately 100 North Koreans, covering very basic information about use of blockchain technology, use of "smart contracts," and "information that one could readily learn from a Google search[.]" (D. Mem. at 12.) The government claims that Griffith gave a presentation and answered questions on cryptocurrency topics that were pre-approved by the DPRK and largely surrounded the potential to launder money and evade sanctions. (G. Mem. at 11.) The government obtained portions of audio recordings of the conference that have been produced to the defendant.

Upon returning to Singapore, Griffith visited the U.S. embassy to report his trip, and was interviewed by a State Department official for "several hours." (D. Mem. at 12.) On May 22, 2019, he traveled to New York and was interviewed by the FBI at their request. (Id.; G. Mem. at 19.) On November 6, 2019, he was questioned over the phone by the FBI. (Id.) On November 12, 2019, he again was interviewed by the FBI, this time in San Francisco, where he voluntarily turned over his cell phone. (D. Mem. at 12.) On or about November 28, 2019, he was arrested at Los Angeles International Airport on a criminal complaint. On January 7, 2020, an indictment was filed charging him with one count of conspiring to violate the IEEPA, 50 U.S.C. §§ 1701 – 1706. (Doc 9 at ¶ 1.)

MOTION TO DISMISS THE INDICTMENT

The indictment must provide "a plain, concise, and definite written statement of the essential facts constituting the offense charged...." Rule 7(c)(1), Fed. R. Crim. P. "An indictment must sufficiently inform the defendant of the charges against him and provide enough detail so that he may plead double jeopardy in a future prosecution based on the same set of events." United States v. De La Pava, 268 F.3d 157, 162 (2d Cir. 2001). "An indictment, however, need not be perfect, and common sense and reason are more important than technicalities." Id.

Dismissal is only appropriate "in very limited and extreme circumstances...." United States v. Broward, 594 F.2d 345, 351 (2d Cir. 1979). Dismissal "is an ‘extraordinary remedy’ reserved only for extremely limited circumstances implicating fundamental rights." De La Pava, 268 F.3d at 165 ; see also United States v. Fields, 592 F.2d 638, 647 (2d Cir. 1978) (dismissal of an indictment is "the most drastic remedy available" and an "extreme sanction"). A pretrial motion to dismiss an indictment must not weigh the sufficiency of the evidence. United States v. Alfonso, 143 F.3d 772, 777 (2d Cir. 1998).

A. The Indictment Provides Adequate Notice and Protection Against Double Jeopardy.

The indictment provides Griffith with adequate notice of the charges against him and protects against the risk of double jeopardy. Here, the indictment on its face alleges the time period of the offense (in or about August 2018 to in or about November 2019), the place of the offense (this District, the DPRK and elsewhere), the participants in the conspiracy (Griffith and others known and unknown) and two objects of the conspiracy ("did provide and cause others to provide services to the DPRK, without first obtaining the required approval" and "would and did evade and avoid, and attempt to evade and avoid, the requirements of U.S. law with respect to the provision of services to the DPRK"). (Doc 9.) It further alleges the laws ( 50 U.S.C. § 1705 ), regulations ( 31 C.F.R. §§ 510.212(a) - (b) ) and Executive Orders (13466 and 13722) that Griffith is charged with having violated.

"An indictment need do little more than to track the language of the statute charged and state the time and place ... of the alleged crime." United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975) (citation omitted). This indictment tracks the language of the IEEPA and accompanying regulations. As such, it meets the threshold of providing notice of the charged offense, its approximate time frame and sufficient detail of the subject matter to enable the defendant to plead double jeopardy in any subsequent prosecution. The indictment satisfies the Fifth and Sixth Amendments. Whether the government can prove the allegations beyond a reasonable doubt or whether the defendant has a viable defense are matters left for trial. "An indictment returned by a legally constituted and unbiased grand jury ... if valid on its face, is enough to call for trial of the charge on the merits." Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

B. The Indictment Alleges Conduct that States a Crime.

While framed as a challenge to the face of the indictment and its legal and constitutional infirmities, Griffith, in actuality, argues that the facts that are likely to be presented at trial will not support a lawful conviction. His argument vacillates between complaining of the paucity of facts alleged in the indictment¹ and an assertion that the government's evidence and theory of the case will not succeed in proving a crime: "While the indictment lists not a single allegation of fact, based on the government's complaint, its filing in this case, and the discovery it has produced to date, it appears that the government's theory is that by attending and speaking...