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Joshua you want to uncouple the child porn re WikiLeaks? Updated

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Posted on June 19 2019

This The updated 6/19/2019  7:58PM EST - to include letter from Government to the Court re Search Warrants and Schulte’s - Memorandum of Law In support of separating counts. See bottom of entry.

 

Joshua Schulte WikiLeaks Case Update it’s a lot

 

Schulte Parts I - III

 

In order to bring you up to speed, you might find Part I - helpful. As it lays down the foundation of which to build upon. To fully understand the complexity of the Joshua Adam Schulte & the CIA & Wikileaks and how the SDNY child porn leads to Wikileaks Vault 7 and EDVA issues.

In Part II -  I put a bit of meat on the bones. In general terms as it relates to Schulte, his two superseding Indictment and his oddly prolific social media presence even while in Custody. I further drilled down on the EDVA and “alleged sexual assault” in a Northern Virginia County where he live prior to moving to NYC ( to take a job at Bloomberg never forget that datapoint)  Schulte’s LinkedIn info and odd blog are all embedded in Part I, II and III. Frankly his writings are truly one of the more disturbing musing I’ve read. It was a weird look into his mind and it was - awkward & disturbing. 

 

 

Not the least for which in Schulte’s superseding Indictment - specifically concerning Count V. This was the first time that Prosecutors Officially state in unambiguous terms that there was a transactional component to the superseding Indictment. Prior to this there was a lot of speculation, hence why I thought it was noteworthy.

In Part III -  I drilled down on his Motion but specifically pointed you to a previous Hearing Transcript:

 

early 2018 the Government argued that Schulte had impermissibly shared contents of both the search warrant(s) and affidavit(s) with at least two reporters  based on jailhouse telephone transcripts. This culminated into a pretty heated May 2018 exchange, see transcript here:

 

And I drilled down on the April 2019 filing -which disclosed multiple warrants that were previously unknown and a disclosure of multiple ongoing investigations, yes plural:

 

A few moments ago Schulte’s SDNY docket updated. To include a new Order (Document # 85) denying Schulte’s March 26, 2019 stating the six warrants previously obtained in 2017 along with the Affidavits should be released becuase Schulte stated:

the time for the investigation is long gone”

 

Government Opposition to Vacate SAM - 6/17/2019

 

To be fair before we unpack Schulte’s copious motions it might make sense to quickly summarize the Government’s June 17, 2019 Motion of Opposition

https://ia802802.us.archive.org/18/items/gov.uscourts.nysd.480183/gov.uscourts.nysd.480183.96.0.pdf

 

The Government’s Preliminary Statement is just SAVAGE. Once again I find the need to postulate myself - I was unfairly skeptical of AUSA Berman. Notwithstanding I have never been so happy to be so wrong. AUSA Berman has truly proven he is beholden ti the  Rule of Law and it was completely unfair of me to make such an unformed assessment. It’s a life lesson that I do not intent to repeat but just to be clear we, as a Country are exceedingly  luckily to have an AUSA like Berman. Because this is an incredibly concise and logical statement:

 

Contrary to Schulte’s attempt to characterize himself as a victim of arbitrary and vindictive BOP action, the reality is that Schulte brought the imposition of the SAMs on himself. Even before his detention at the Metropolitan Correctional Center (“MCC”), Schulte has engaged in an escalating series of willful and illegal acts that culminated in his declaration of an “information war” against the United States from the MCC. Schulte’s wanton disregard for the rules governing the disclosure of classified information began during his time with the Central Intelligence Agency (the “CIA”), where he broke into CIA computer systems, stole classified information, and transmitted it to the online organization WikiLeaks.org (“WikiLeaks”), which disclosed it publicly.

 

By the time I got to the third paragraph of the first page of the Preliminary Statement i reflexively stood up and yelled: FINISH. HIM. LAY THE LAW LIBRARY ON HIM. Do it. To wit my Spouse said “are you not entertained” and that caused me to imagine the SDNY prosecutors are actual gladiators. Period. Full Stop.

 

 

 

Keep in mind the June 17th Motion of Opposition, was in response to Schulte’s May 10, 2019 Motion to Vacate SAMs

 

SAM = Special Administrative Measure

 

In Schulte’s May 10th Motion the predicate is Schulte’s conduct while in custody does not comply with the strictures set forth in 28 C.F.R. §501.2 - that he’s the victim. That the “extreme social isolation is unwarranted” and the government has failed to particularize how Schulte could be viewed as a “substantial risk” that given the opportunity he will use “third-party communications to disclose classified information that will pose a threat to the national security”. The only major and fatally flawed problem is Schulte did in fact use multiple third parties to decimate classified materials, had contraband (cell phones) brought in to MCC and then used the internet (while using tools to obscure his online activities while he was in custody. In short Schulte wants the Court and the Court of Public Opinion to view him as the “Boy Scout” and he’s the victim. Which is expected by someone like Schulte. The Court has yet to render a decision in this matter but I suspect will by the end of this week. Now that you are fully briefed (pun not intended) let’s dive into Schulte’s June 18th filings...

 

 

Schulte’s Motions,- Suppress & Memorandum

 

And yes I am aware of the fact that I sometimes get lost in the details but it is a well known fact that tiny details in criminal trials actually matter - a lot. So sure it’s okay to give me grief about my annoying and verbose prognostications. Which now brings us to Defendant Schulte’s 

 

Memorandum of Law In Support of Motion to Sever the Child Pornography and Copyright Counts (12-15) from the Classified Information Counts (1-11)

 

Defendant Schulte cites Federal Criminal Rules of Procedure - Rule 14(s) and I know you’ve heard me say this as nauseam: “always know your local rules because there are occasions where the local rules might be different. SDNY and EDNY - Local Rules can be found here (October 28, 2018) - you’ll note that Rule 14(a) is not listed, which means on the local level th Court “Rule” doesn’t deviate. 

And yes of course we could have a spirited  esoteric or even academic debate of where/what is the “proper” place to “go” to find the most updated rules  - I am old school, therefore I prefer to go straight to the source. As in the House and/or Senate Judiciary Committee(s). Because those of us in the legal community know that both the House and Senate Judiciary Committees actually set the Rules. Hence why many of our Federal District Courts actually embed on their respective websites. I now refer you to pages 31 and 42 (circa 2016)

If I’m going to be super picky - I can tell you as a standard practice I tend to prefer going straight to House of Representatives OLCR (Amended December 2018) versus relying on a 3rd party reprint. Personally I’m a fan of the pure source.

 

With respect to Defendant Schulte Motion - he cites the following rules as a justification to uncouple the child pornography. 

 

 

Rule 8(a) which reads in part:

(a) Joinder of Offenses. The indictment...may charge a defendant in separate counts with 2 or more offenses if the offenses charged...are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.

 

Rule 14(a) which also reads in part:

Relief. “If the joinder of offenses or defendants in an indictment...for trial appears to prejudice a defendant...the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.” (emphasis added)

 

Defendant Schulte’s argument is actually multiple arguments disguised as one. In non-legalese he’s arguing that the child pronography is just so prejudicial that the Court should uncouple those counts into a separate action. Having followed this case pretty closely, Intellectually speaking I somewhat understand why he would argue that, but I’m not certain he’s making a persuasive showing. I’m fact he’s arguing in the margins and it’s a sad attempt to distract for the meritorious arguments offered by prosecutors..

 

 

As per usual those footnotes are worthy of scrutinizing. And now it’s time for some serious evisceration by moi - these are not just my opinions.  I’m going to re-frame what Schulte is doing here based on facts and the filings on the docket.

 

 

Point 1 - the child pronography was found during the course of the Investigation. Specifically once investigators had a lawful search warrant they imagined Schulte’s electronics and the child porn what is known as a Virtual Container. I explained this at length in Part I

 

Point 2 - I also embedded the Hearing Transcript where the Government explained from a data forensic standpoint how they accessed the encrypted directory and how they had actual chat logs where Schulte “bragged” about his collection of child porn (again I spent a decent amount of time carefully explaining the who, why, what, how and when surrounding the encrypted child porn files. 

 

 

The nature and circumstances of this offense in particular are troubling. This is not a run-of-the-millchild pornography case. The defendant was caught with literally over 10,000 images and videos of child pornography. It's an enormous volume of child pornography, and it included sadistic and masochistic images and videos of children as young as a few years old who had been...

As the DOJ Attorney argued at Schulte’s initial appearance hearing, Schulte didn’t just enjoy collecting and viewing child porn, he also bragged about his collection in various chat rooms:

 

Point 3 - the copyright argument is quasi persuasive but it’s the last sentence in the footnote that exposes the real reason Schulte wants to group the child porn and copyright while bifurcating the espionage counts. Again I find his arguments unavailing. But it is also common place that if you are in possession of copyrighted videos then you are most likely going to face those criminal statutes too.

 

Point 4 -  the Contempt of Court this June 2018  Twitter-Thread  provides you a robust documentary trail of why Schulte’s argument is fatally flawed. While in federal custody Schulte violated the Court’s Protective Order governing discovery in his case, Schulte leaked to two separate reporters some of the discovery the Government produced. So irrespective of what Schulte’s June 2019 argument is - it doesn’t not inoculate his Contempt of Court count, at all.

 Remember earlier this year Schulte filed a civil lawsuit against the Government - see archived twitter thread. I’m not a mental health expert, so the following opinion is drawn from Schulte’s actions. A solid argument could be made that Schulte “thinks he’s the smartest man in any given room” at each turn in this criminal matter he has displayed his distain and “intellectual superiority” but the reality is Schulte’s actions are why he’s in custody and facing decades in federal prison. Not the FBI. Not the AUSA. And certainly not the Court. Schulte “broke” in to the CIA’s servers and then decided to store some of that info in VM encrypted containers. Once in Custody Schulte then used the very limited privileges to further obfuscate his ongoing complicity. 

 

In my opinion what Schulte is attempting to do is akin to:  okay child porn is super prejudicial and the evidence is pretty cut and dry. It will be easy for the jury make a decisive verdict based on the voluminous evidence. Since the espionage and unlawful leaked documents to WikiLeaks is super complicated - let’s go ahead and silo them. The only problem is the child porn was discovered in the course of the CIA Vault 7 Investigation. You can’t divorce the matters. Because it’s procedurally improper. Likewise the two superseding Indictment are inextricably linked to the first cause of action. 

 

My retort is as follows: the child porn was discovered during the course of the investigation - it’s materiality goes directly to the “character” and “decisions” of the Defendant. Again Schulte’s unrepentant braggadocios chats about how much child porn he had - that’s going to be exceedingly difficult to argue in the alternative.

 

While I laud Defendant Schulte’s acknowledgment that the FBI obtained multiple search warrants it does not change the fact that the child porn was found on electronics owned and operated  by the Defendant. Moreover while its true that the public docket doesn’t indicate if the investigations found any evidence whether it’s metadata or actual documents that Schulte leaked to WikiLeaks it does not negate the factual predicate that Schulte had some 50K images of child porn. As the saying goes - “you can put lipstick on a pig, but it’s still a pig”. Just to clarify I’m not inferring that Schulte is a pig, it’s merely a colloquial analogy.

 

 

And the other elephant in the Courtroom that we haven’t discussed is Trump. As many of you know Trump has repeatedly and inappropriately opined about various criminal cases. I do think it is slightly telling that Trump has never tweeted about the Vault 7 WikiLeaks, not once. This Trump Twitter Archive link will take you to the 10 tweets about “leakers” 

 

🌶

 

 

I don’t know about you but I still can not nor will not forget the gross and offensive January 21, 2017 self aggrandizing unpatriotic & unAmerican speech.  Trump with the black stars on the wall of fallen CIA Employees behind him. Rifted in and out of coherency only to land on braggadocios. Those nameless men and women of the CIA died protecting our Homeland and Americans like you and me. The fact that Trump has never paid a political price for this spectacle “shocks the moral conscious of man” at least it should.

 

Trump “cared” and still cares about his 2017 Inauguration crowd size. As a creature of DC - this is the precise moment I knew that Trump was a danger to our Democracy. That Trump & his handlers intended to take a sledgehammer to nearly all of the Government Institutions. And that Trump would set asunder our Country’s morality, ethics and global alliances. The question remains: at who’s furtherance America or his own? I’d submit it’s the latter versus the prior. 

🌶

 

 

 

At any rate, let’s get down to brass tacks and unpack Defendant Schulte also submitted a Motion to Suppress - the ubiquitousness of this Motion is bonkers. Schute essentially  wants ALL evidence obtained through the October 2018 search warrant. Remember prosecutors argued that Schulte used a laptop to violate the Court’s Protective Order and that Schulte outed himself during the jailhouse recordings of his conversations with his family and formef roommate. As for the attorney client privilege - Schulte has failed to present a Memorandum of Law to support or argue that the crime fraud exemption isn’t applicable.

 

suppress all evidence recovered from subsequent warrants that relied upon those seized documents and that authorized the search of: (1) a CD containing the contents of three encrypted email accounts; (2) two laptop computers; and (3) accounts associated with Buffer, Facebook, Twitter, Automattic, and Google. Further, Mr. Schulte moves to suppress all seized materials protected by the attorney-client and work-product privileges, and for a hearing to determine the extent to which the prosecution team was exposed to such privileged materials and used those materials to further its case.

 

 

Although to Defendant Schulte’s credit he did submit a:

Memorandum of Law in Support of Defendant Joshua Adam Schulte’s Motion to Suppress Evidence Seized from the Metropolitan Correctional Center

Let’s go ahead and unpack his Motion because that’s exactly what I want to do after an exceedingly long day of shoving bon-bons in my calorie hole...it’s not like those bonbons are going to eat themselves <snort>

 

MCC Search Warrant -

the Government obtained two separate search warrants - October 2 and 26, 2018, respectively. Which granted investigators to search Schulte’s cell and former cell  - although the 7 North and South Unit makes me wonder if another inmate was a confidant of Schulte’s. It also puts this October 1, 2018 blog entry in to a different context, and puts this October 29, 2018 letter to the Judge in to a whole different context.

Furthermore the October 31,2018 letter from the Government certainly reads in a more fulsome context. Although that multi-month long thread was a lot of work and then occasionally I go back and stumble upon gems like this - which is timely and hilariously on point:

 

 

The footnote on page 3 is also very telling because Schulte’s narrative is he is the “victim” and the FBI has exceeded its authority to the point of abusing him. Which is specious and not founded in the truth or facts. The was enough probable cause that a Judge authorized not one but two search warrants. The footnote also disclosed that “contraband cell phone” and the “possibility” of co-conspirators bringing in the cell phones. We knew about that previously but I’m somewhat concerned that once again Schulte is coming right up to the line of violating the protective order in his recently filed motions.

 

 

authorized the search and seizure of “[a]ny and all notes, documents, records, correspondence, or materials, in any format and medium . . . pertaining to the unauthorized retention, gathering, and transmission of classified documents or materials, and the unauthorized removal and retention of classified documents or materials.”



Wall Review” Warrant  - the way that I read this (and I’ll readily admit I’m inherently biased and unapologetic in my deference to the FBI) that once the materials were seized via a lawful search warrants the FBI put in a “taint-team” aka “Wall review” Team which chartered to confirm & respect the attorney client privilege - oddly though Schulte isn’t arguing work product privilege nonetheless I don’t see anything nefarious or onerous in how  the FBI siloed the evidence collected.

 


Proton Mail Warrant, Discovery Laptop Warrant - again the “wall team” reviewed the evidence such as the passwords Schulte had written in his notebooks as well as a CD which contained information of three encrypted email accounts. The fact that (if my memory serves me correctly see Part III when the Court admonished his new Public Defender) that Schulte had multiple laptops so he could “view” the Government’s evidence produced as part of discovery - remember that the Federal Public Defended had to buy a highly specialized laptop so Schulte could view the evidence. Accordingly these warrants confirmed that Schulte created encrypted containers on that laptop. That’s a pretty big problem and aren’t you glad that I actually read all the filings on his ever growing docket?

 

Those accounts were accessed by a member of the wall team using passwords obtained from the notebooks. Agent Donaldson’s affidavit in support of this warrant quoted certain pages of the notebooks as evidence that Mr. Schulte “discussed setting up and using the Encrypted Accounts to send potentially classified information to third parties”

Mr. Schulte’s notebooks “appeared to describe forensic locations on hard drives used by computers . . . like the Discovery Laptops into which data could be covertly transferred and stored.”

 

ISP Warrants - the most simplistic way to explain Schulte’s Motion In non-legalese is his entire argument is the “fruit” came from “the poisonous tree” therefore the evidence/fruit should not be allowed. The larger problem is Schulte offers very little in the way of Case Law to buttress his arguments. Again that’s not me critiquing his Public Defender - because some of the smartest lawyers I know are PDs. And I have nothing but respect for the work they do - it’s s thankless and underpaying job. But remember the reason Schulte was appointed a PD - his previous lawyer withdrew, shortly after his arguments in the 2ndCCOAs. 

 

 

 

 With respect to Schulte’s request to vacate the conditions SAMs - I believe he has raised objections to the stringent conditions of the SAM before and his Motion was denied. Meaning Schulte’s strategy of regurgitating previous arguments where the Court ruled against you - it’s the smartest move. The reality is Schulte doesn’t have a strong argument here, at all. But then again his modus operandi has been: “pay no attention to my behavior, I’m the victim. The FBI set me up” none of which is the least bit believable. 

And lastly if and when the Court unseals the Government’s evidence I’ll bs happy to update but I’m not holding my breath because of the (likelihood) of the highly sensitive nature of said evidence. - SpicyFiles 

 

Update

Earlier today the Government notified the Court that it has de-designated the Search Warrant Materials and now provided those materials to Defendant Schulte. Which is rather unexpected given the Court had previously ruled against Schulte’s request for production in its April 15, 2019 Order (Original Order Denying Schulte’s request for production of 2017 Search Warrant materials)  and the April 16, 2019 Order. (Denying Schulte’s request for reconsideration), to wit Schulte filed this April 17, 2019 Notice of Appeal..

I have taken the liberty of highlighting the relevant sections of today’s letter from the Government to the Court. Again I’d like to know what the recent developments were that caused the Government to abandon its previous position. Also I’m working on a bitcoin & child prom write up but I’m a little bit slammed at work and no that does not include shoving bon-bons in my calorie hole.

 

Based on recent developments, which the Government will describe in a separate ex parte letter to the Court, the Government is de-designating the Search Warrant Materials as Confidential under the Protective Order and has reproduced them as such to the defendant.

 

🌶SpicyFiles - IMPORTANT Sidebar🌶 there is only one logical  conclusion and in my line of work - the only reason the Government is abandoning its previous position of “we can not release the search warrant info as it could adversely impact ONGOING INVESTIGATIONS is those “investigations” are now over and it’s likely we will soon see an unsealing of Indictment(s) from the Government. Again I should say that’s not a lock this is in fact me speculating based in part of my own working experience and knowledge of the reasonable rationale. I could certainly be off the mark but for now I would advise you keep your eyes on SDNY and EDVA...

 

What ever the “events” aka circumstances are, sadly we won’t know until the Ex Parte is unsealed - but something occurred and in my experience it had to be rather significant for the Government to do this 180 on protecting the 2017 Search Warrant materials, I wish I could tell you what “event” it was but I’m just as in the dark as you are. Other than that Schulte’s Docket was updated with the following notice (largely covering documents 99:

 

NOTICE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR as to Joshua Adam Schulte: Notice to Attorney Glashausser, Allegra to RE-FILE Document 99 MOTION for Separate Trial on Counts Joshua Adam Schulte (1) Count 12ss,13s,13ss,14ss,15ss. ERROR(S): Filing Error of Supporting Memorandum. Supporting documents must be filed individually. Event code located under Replies, Opposition and Supporting Documents. ***NOTE: Separate docket entry for each. (ka)

 

See curative filings documents 100 & 101 respectively:

 

 

 

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2 comments

  • Marie G: June 22, 2019

    Thanks, Spicy. It’s like people didn’t notice the cases of Monster you stocked up on for your drill down/research binges. The time for investigation has only just begun, mwahahaha.

    As always, miss you on that crappy social platform but you know what, you’re keeping up the good trouble just fine. Cheers, Spicy, a toast to all your hard work, have an amazing weekend.

  • modernhomesla: June 20, 2019

    “shoving bon-bons in my calorie hole.”

    If, fuqqing only, Mic.

    IF.

    <3

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