EFTA00105705.pdf

1 L49KNEWM 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 x 3 THE NEW YORK TIMES COMPANY, 4 Plaintiff, 5 v. 20 CV 833 (PAE) Remote Conference 6 FEDERAL BUREAU OF PRISONS, 7 Defendant. 8 x New York, N.Y. 9 April 9, 2021 4:00 p.m. 10 Before: 11 HON. PAUL A. ENGELMAYER, 12 District Judge 13 APPEARANCES 14 THE NEW YORK TIMES COMPANY 15 BY: DAVID EDWARD McCRAW ALEXANDRA SETTELMAYER 16 AUDREY STRAUSS, 17 United States Attorney for the Southern District of New York 18 STEVEN J. KOCHEVAR Assistant United States Attorney 19 ALSO PRESENT: 20 KARA CHRISTENSON, BOP 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105705  2 L49KNEWM 1 (The Court and all parties appearing telephonically) 2 THE COURT: Good afternoon. This is Judge Engelmayer. 3 Let me begin by asking my law clerk to confirm that 4 all counsel are on the line. 5 THE LAW CLERK: Hi, Judge. That's correct. And the 6 court reporter, Mr. Walker. 7 THE COURT: Very good. Then let me take the roll. 8 Who do I have for the New York Times? 9 MS. SETTELMAYER: Your Honor, you have Alexandra 10 Settelmayer on behalf of Plaintiff New York Times Company. I'm 11 here with my colleague, David McCraw. 12 THE COURT: Very good. Good afternoon to both of you. 13 Who do I have for the government on behalf of the 14 Federal Bureau of Prisons? 15 MR. KOCHEVAR: Steven Kochevar, your Honor. Good 16 afternoon. 17 THE COURT: Good afternoon, Mr. Kochevar. 18 And, Mr. Walker, our court reporter, are you on the 19 line? 20 (Pause) 21 THE COURT: Good afternoon, and, as always, thank you 22 for your service. 23 This the case of New York Times versus Federal Bureau 24 of Prisons, 20 CV 833. We here are for oral argument on the 25 reciprocal motions for summary judgment by both sides. At the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105706  3 L49KNEWM 1 outset, let me thank counsel for careful and thoughtful pairs 2 of briefs, really, on both sides. 3 I've given thought to the right sequence here. I 4 think it makes the most sense for the defendant, for counsel 5 for Bureau of Prisons, to go first, really because, for the 6 most part, they are in the process of explaining the 7 withholdings and redactions, and so I think the discussion 8 works best with them going first and with The New York Times 9 going second. 10 With that, Mr. Kochevar, I'll hear you first. 11 MR. KOCHEVAR: Absolutely. Thank you, your Honor. 12 There are several exemptions in play here, but I'll 13 start with Exemption 7(A) and note at the outset that if the 14 Court upholds the Exemption 7(A) withholding, then some of the 15 other issues that are in play here need not be reached. But 16 with that in mind, I'll start with Exemption 7(A). 17 With respect to the documents withheld under 7(A), the 18 government has met its burden by showing a rational link 19 between disclosure of the documents and ongoing law enforcement 20 proceedings. Specifically, the government has demonstrated a 21 rational link between disclosure of the documents and 22 interference with the pending criminal proceedings of Tova Noel 23 and Michael Thomas as well as the criminal prosecution of 24 Nicholas Tartaglione. These are weighty pending criminal 25 proceedings, and the government has clearly explained how SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105707  4 L49KNEWM 1 release of the documents could reasonably be expected to 2 interfere with them. 3 I think that there are really two points in dispute 4 right now with respect to the government's application of 5 Exemption 7(A), and, respectfully, neither of them are 6 particularly close calls. 7 First is the question of whether the documents were 8 compiled for law enforcement purposes. And, as noted, in I 9 believe both briefs, the Tenth Circuit has adopted a per-se 10 rule. 11 THE COURT: Let me just pause you on the doctrine for 12 just a moment. 13 Assume for argument's sake that my perspective is not 14 the per-se rule but something more akin to what Judge Oetken 15 used. So I'd urge you, without in any way conceding the 16 broader legal point that I know you have made, it would be more 17 fruitful for me for you to argue it other than on a per-se 18 basis. 19 MR. KOCHEVAR: Absolutely. 20 So, applying the more practical standard that Judge 21 Oetken applied in this district, the showing there is just a 22 rational nexus between the compilation of the records and law 23 enforcement. And, here, I would say there are multiple 24 independently sufficient reasons that there's a rational 25 relationship between these documents and law enforcement. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105708  5 L49KNEWM 1 The first one is that they relate to the pretrial 2 detention of an individual or multiple individuals, and that is 3 in itself a law enforcement purpose. 4 The second one is that these documents, like many BOP 5 documents, pertain to the safety and security of BOP 6 facilities. So, there's sort of, even separate from the 7 criminal proceedings that are necessarily going to be in play 8 if someone is in BOP custody, there's also a separate law 9 enforcement interest and purpose that BOP has to enforce the 10 law within its own facilities. So the documents also pertain 11 to that. 12 But the third reason that these are also compiled for 13 law enforcement purposes is that the law is that a document 14 does not have to meet this standard in the first instance in 15 and that it doesn't actually have to be created for a law 16 enforcement purpose provided that it's later compiled for one. 17 The documents here were created for law enforcement purposes, 18 but even setting that aside, the fact that they were later 19 compiled in connection with investigations, including some of 20 them in connection with the pending criminal prosecutions that 21 we're going to talk about in a second, that would also show 22 that they were compiled for law enforcement purposes. 23 So, overall, I think the point is that even if the 24 Court does not adopt the Tenth Circuit's per-se rule, much of 25 the insights or thinking of the Tenth Circuit is still going to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105709  L49KNEWM 1 come in here because BOP is a law enforcement agency and much 2 of what it does is suited to law enforcement, is directed at 3 law enforcement purposes. 4 THE COURT: Given the way you're conceiving of things, 5 what BOP-held documents would not qualify as compiled for law 6 enforcement purposes? 7 MR. KOCHEVAR: I think, under the rational nexus 8 approach, I think there's an example — I'm not going to 9 remember exactly what it is - from Judge Oetken's opinion but I 10 think it was, you know, a BOP document that lists all BOP 11 facilities or something like that, things that are mundane and 12 are not going to really implicate security interests at BOP are 13 not related to specific inmates or any criminal proceedings 14 with them. And then beyond that, like I said before, even if 15 you have some mundane documents like that, they may be later 16 compiled for some law enforcement purpose -- 17 THE COURT: But, for example, a document that just 18 describes conditions of confinement — let us say, COVID-related 19 conditions of confinement or general, you know, cleanliness 20 versus filth, something like that — would that be a law 21 enforcement purpose? 22 MR. KOCHEVAR: I think many of those documents 23 actually would be, your Honor; specifically, I think in terms 24 of COVID, because they would implicate some of the security 25 issues that BOP deals with as a law enforcement agency within SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105710  7 L49KNEWM 1 its own facilities. 2 I want to use maybe the example of like a contract for 3 outside maintenance work at a BOP facility may be -- if there's 4 like a contract for someone to come, and, I don't know, fix the 5 bushes outside. I don't mean to be flippant here but I'm just 6 trying to think of things that are not related to the core 7 purposes of BOP's work with inmates and all the various issues 8 that are implicated in the penological context but that are BOP 9 documents, those are the ones, I think, that are going to fall 10 outside the rational nexus test but would fall, of course, 11 within the per-se rule. 12 But my point overall here is that the documents we're 13 talking about in this case are pretty far away from that 14 category, for the multiple reasons that I just listed — they 15 are about inmates' pretrial detention, they do implicate the 16 security concerns and internal law enforcement concerns that 17 BOP has, and then also many of them were later compiled for 18 other investigatory purposes. 19 THE COURT: Let me move you to the second prong of 20 7(A) because I think that is, more than the first, where the 21 action is here. 22 MR. KOCHEVAR: Sure, absolutely, your Honor. 23 So, disclosure of the documents could reasonably be 24 expected to interfere with multiple criminal prosecutions in 25 this district. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105711  L49KNEWM 1 First, I'll start with the Tartaglione documents. But 2 I want to sort of be clear that the Court does not actually 3 need to reach that issue of the Tartaglione documents if it 4 upholds the documents -- actually, I should flip this, I should 5 start with the Noel documents. 6 THE COURT: Actually, I'm going to start with 7 Tartaglione because that's where I intended to start you. So 8 why don't you stick with the original game plan. 9 MR. KOCHEVAR: Sure. 10 THE COURT: In fact, let me start us off on 11 Tartaglione because I may be able to zero in on what is of 12 particular concern. 13 I could not follow, although I've read both Capone 14 declarations, including the first one — which, starting around 15 paragraph 28, engages with Tartaglione — I couldn't think up, 16 except with some degree of speculation, which of the entries on 17 the index of withholdings in full — and there are 60 of them 18 and 57 are withheld in full under 7(A) — lost to me was how 19 much of those are being withheld in full on 7(A) on account of 20 Tartaglione or, for that matter, in part, because of 21 Tartaglione under 7(A). 22 Can you tell me, of the 57 categories here, how much 23 of them have some degree of withholding on account of 24 Tartaglione? 25 MR. KOCHEVAR: I apologize, I can't give you a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105712  9 L49KNEWM 1 specific number. And this is actually a wider procedural point 2 about what, frankly, would need to happen depending on how the 3 Court ruled. Because many of these are withheld in full under 4 7(A), more broadly under Noel, I think, if the Court were not 5 to uphold certain withholdings, there interest would need to be 6 a period where BOP would go back in and sort of very precisely 7 determine which documents or portions of documents -- 8 THE COURT: Pause on that. There are a couple of 9 premises in there. 10 I trust that an AUSA has looked at every single 11 document that has been withheld or redacted in this case. Is 12 that correct? 13 MR. KOCHEVAR: Yes, absolutely, your Honor. And to be 14 clear, I can tell you in general -- I just -- I don't have it 15 at my fingertips, a number for the specific -- 16 THE COURT: Well, but I think it's important. And let 17 me just go through a couple of aspects of methodology. 18 The first thing I wanted to make sure that the lawyer, 19 not the client here, meaning the U.S. Attorney's Office and not 20 a lawyer at BOP or somebody else at BOP, made the calls here. 21 Are you representing to me that for every single document that 22 has either been withheld or redacted, an AUSA signed off, with 23 eyes on the document, on that decision? 24 MR. KOCHEVAR: Yes, that is correct, your Honor. 25 THE COURT: Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105713  10 L49KNEWM 1 So, as to Tartaglione, is there somewhere, even if not 2 yet presented to the Court, a grid or something that would 3 reflect essentially which entries, and within the entries which 4 documents, are being withheld, at least in part, on the basis 5 of Tartaglione? 6 MR. KOCHEVAR: No, other than -- well, other than the 7 descriptions of the documents given in the declarations 8 supporting the withholding, no, we don't have a chart 9 specifically on that. And there is somewhat of a reason for 10 that separate from just how things were presented, which is 11 that I think there's some concern that providing too detailed a 12 description of some of these documents and their contents could 13 start to tread into some of the underlying concerns here. 14 THE COURT: With respect, I think "too detailed" is 15 not the problem here; I think the problem is that there's too 16 much of a "trust us" quality about the description here. As my 17 staff and I went through paragraph 28 and what followed, we 18 were able to come up with, broadly, what looked to be to us 20 19 to 25 separate entries where there appear to be withholdings of 20 documents withheld on account of Tartaglione — I could rattle 21 them off for you, I don't think it would be productive — but 22 based on the short clauses in the Capone declaration. 23 But, in truth, the problem is, as the Court, I'm left 24 with a degree of guessing as to whether it's correct that entry 25 19, medical and psychological records of Epstein, or 31, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105714  11 L49KNEWM 1 investigative documents from suicide, or 41, psychological 2 reconstruction responses -- you know, there's plenty in here 3 that suggests that materials for Tartaglione have been withheld 4 that relate not just to July 23rd but to August 10, and I'm 5 just left with way too much guessing here in terms of ticking 6 and tying the categories to Tartaglione. 7 MR. KOCHEVAR: I'm not -- if this is -- I don't know 8 if this addresses the Court's concerns, but I believe 9 everything withheld in full under 7(A) is independently 10 withheld in full under Noel. 11 THE COURT: We'll get to Noel, we're going to get to 12 Noel, but since the government has put Tartaglione front and 13 center here, I'm entitled to probe. 14 Let me try this: Has a single document here been 15 withheld under Tartaglione that relates to the events of 16 August 10th? 17 MR. KOCHEVAR: So, in some sense, yes, in that I 18 believe -- and I want to be careful here because I don't have 19 the documents in front of me but my understanding is that there 20 are certain documents that relate to the events of August 10th 21 that also include some history of Epstein's incarceration such 22 that it includes descriptions of his prior apparent suicide 23 attempt on July 23rd. 24 THE COURT: And if that were the case, though, to the 25 extent we're talking about Tartaglione, though, only a limited SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105715  12 L49KNEWM 1 subset, that that really gets at the July date -- sorry, I 2 think somebody needs to mute the phone. If there is a 3 synthetic document that covers a lot of Epstein history, I 4 understand the point that a subset that relates to July 23rd 5 might be withholdable under Tartaglione, but that would not 6 implicate the entire document, right? 7 MR. KOCHEVAR: With the exception that I think some of 8 these documents — and I believe this is noted in the Capone 9 declaration — there are concerns about even releasing them in 10 part because I think the idea, first, in the Tartaglione case 11 that there would be documents, heavily redacted documents 12 related to Jeffrey Epstein that came out and there was just a 13 little piece of them without context, I think that some of the 14 7(A) concerns would apply there as well. 15 THE COURT: Wait, because you're saying that, in 16 effect, if the government redacts too much, that raises its own 17 concern about the limited amount it allows to be seen? I'm 18 puzzled. That's a somewhat backwards argument, which is, if 19 we're very aggressive about what we withhold, that justifies us 20 in withholding yet more because it creates a mystery as to what 21 must be underneath the blacked-out part. 22 Is that what you're saying? 23 MR. KOCHEVAR: I think what I'm saying is that the 24 particular concerns here, particularly about jurors and the 25 understanding of potential jurors in a death penalty case like SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105716  13 L49KNEWM 1 Tartaglione's, the idea that there would be documents released 2 that might not give a complete picture and given how some of 3 these events have been reported on and perceived broadly, that 4 there would be concern that partial -- it's maybe different 5 from the typical case where it's a little easier to go in and 6 just take out precise portions where we say, oh, this is about 7 the 23rd and this is not and therefore this piece goes and this 8 piece doesn't. I think there is a concern beyond that here, 9 that if there are documents that do not have full context that 10 come out that give certain impressions, because of the wider 11 landscape here, there is sort of a broader set of concerns 12 than -- 13 THE COURT: I'm not sure I'm following. Let me see if 14 I understand the theory under Tartaglione. As I understand it, 15 there's no argument that his bunking with Epstein has anything 16 to do with the liability phase. Tartaglione is, as I 17 understand it, claiming that if he is convicted at trial, he 18 wants to somehow use it as a mitigating fact that he, I gather, 19 alerted the authorities to a suicide attempt by Epstein. 20 Is there more to it than that? 21 MR. KOCHEVAR: I am -- I can answer directly on the 22 liability part. I do not think any part of Mr. Tartaglione's 23 liability is at issue here. I think the concerns arise, yes, 24 from the penalty phase or the possible penalty phase of his 25 proceeding. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105717  14 L49KNEWM 1 THE COURT: Right. 2 MR. KOCHEVAR: And I think the defense has said there 3 that his actions with Epstein reflect positively on 4 Mr. Tartaglione. 5 THE COURT: Is there anything else, besides the fact 6 that he assertedly intervened to report a suicide attempt — 7 that appears to be the theory here — is there anything else 8 about his cohabitation with Epstein that is any part, as it's 9 been described by the defense in the case, as any part of the 10 mitigation case? I don't understand him to be arguing that 11 it's a mitigating fact that conditions in the MCC were 12 assertedly substandard. That's sympathetic at sentencing 13 perhaps but I've never heard any law that says that's a 14 mitigating factor in a capital case, nor have I understood you 15 to be even articulating that. I understand it solely to be 16 that he apparently did a good deed by reporting Epstein's 17 suicide attempt. 18 MR. KOCHEVAR: So, respectfully -- and I'm not trying 19 to be evasive here, your Honor, but I can't make a full 20 representation as to what the defense's theories are or will be 21 in Tartaglione. 22 THE COURT: But you need, if you're going to be 23 withholding under FOIA, to be able to articulate what at least 24 you have in mind beyond that, because it can't be that 25 Tartaglione says "Epstein," and then, you know, this Iron SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105718  15 L49KNEWM 1 Curtain descends over the Bureau of Prisons' production; you 2 need to articulate what it is, what the factual component is, 3 of the interaction between Tartaglione and Epstein and then we 4 can use that as a measuring gauge for species of documents. 5 So, let me try it this way: Understanding that the 6 defense may have been opaque in Tartaglione as to what it has 7 in mind, what theories is the government articulating, or does 8 it have in mind, as to potential mitigation use of the bunking 9 with Epstein by Tartaglione? What premises is it using to 10 define what is exempt under FOIA? 11 MR. KOCHEVAR: So, respectfully, I think the 12 government disagrees with a little bit of the framing of the 13 law that you just put out there. The standard here is to 14 articulate a rational link between disclosure of the documents 15 and interference -- 16 THE COURT: So, articulate a rational link for me, 17 other than the thesis that at a particular moment in time he 18 reported Epstein's suicide attempt. Is there some other 19 rational link here? If you wanted to use that language, I'm 20 happy to use it. I'm just trying to pin you down so we can 21 move on. I've got a lot of ground to cover with Noel but I'm 22 not going to get there until we get through Tartaglione, and I 23 want to define the Tartaglione problem. 24 MR. KOCHEVAR: Sure. I think there are two letters on 25 the docket in the Tartaglione case that are cited in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105719  16 L49KNEWM 1 government's brief here, and I believe in the Capone 2 declaration as well; and they have, I think, various ideas in 3 them from the defense in that case. I believe the conditions 4 of his confinement are at issue there as well. I believe the 5 events of Mr. -- 6 THE COURT: Meaning that it would be a mitigating fact 7 that the heating system is off, or there are vermin, or 8 something like that? 9 MR. KOCHEVAR: I believe that's implicated in the 10 letters, yes. 11 But I think -- and also the events of Mr. Epstein's 12 apparent suicide attempt are also raised in those letters. But 13 I want to be clear that, respectfully, I don't think the 14 government needs to go into very precise specifics here because 15 the concern is that the government does not know exactly what 16 the defense is going to bring in at the penalty phase of that 17 proceeding, and in the broader context here, there are big 18 concerns that getting anywhere near this stuff is going to 19 hurt, or could reasonably be expected to harm, the integrity of 20 that proceeding. 21 And FOIA, I think, really does carve out criminal 22 proceedings like this, especially a death penalty proceeding, 23 which is sort of the weightiest law enforcement proceeding 24 there is. So I think there's going to be a zone around any of 25 the issues that the defense has raised or might raise or has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105720  17 L49KNEWM 1 indicated in any way that they will raise, and that -- 2 THE COURT: But, sorry, sorry, at that concept level, 3 it's hard to disagree about a zone and about the importance of 4 the proceeding, but one still needs to -- the conversation 5 can't simply stop with invoking Jeffrey Epstein and capital 6 case. I think, for example, it is a reasonable question for a 7 court to say -- let me ask you: When does the guy stop rooming 8 with Epstein, Tartaglione? 9 MR. KOCHEVAR: I don't have the immediate date. I 10 believe it's shortly after his apparent suicide attempt. 11 THE COURT: I believe that to be correct, from what 12 I've read in some of the papers here. 13 Is there a coherent theory under which what happens to 14 Epstein after the two of them stop being bunkmates is 15 implicated here? Or is it like tag, where Epstein got tagged 16 by this guy once and now everything's off limits? I really am 17 not being sarcastic, but it is highly likely at the end of this 18 process that I'm going to direct immediate production of all 19 this material with a tag as to what exemption, as between Noel 20 and Tartaglione, which is being withheld for what basis, and 21 I'm trying to understand what your boundaries are on 22 Tartaglione because the papers do not give me anything tangible 23 to go on. 24 MR. KOCHEVAR: Sure. I understand the Court's concern 25 here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105721  18 L49KNEWM 1 So, yes, there's a large number of documents, I think, 2 afterwards where he's no longer rooming with Epstein, like 3 certain -- the count documents or something, where Tartaglione 4 is not implicated at all. I just can't be global in that 5 because I do recall that there are later reports that are 6 fairly thorough, that he pops up sometimes and specifically 7 discussions of the July 23rd events pop up. 8 THE COURT: Fair enough. But that would be a 9 situation in which one would think redaction more than withhold 10 in full; in other words, if there's a synthetic historical 11 narrative, there's going to be a portion -- Tartaglione is the 12 word "cameo role" almost naturally presents itself in the 13 Epstein period of time at the MCC, there's a brief Tartaglione 14 window here. And to the extent there are documents that are 15 systematic with respect to Epstein, redaction appears to be a 16 rational response here. But once they separate, except insofar 17 as there's a theory that the general conditions of confinement 18 as a whole at the MCC are somehow a mitigation theory that 19 requires anything about what the conditions are at the MCC to 20 be withheld -- otherwise, I think you're talking redaction, are 21 you not? 22 MR. KOCHEVAR: Oh, I understand a little bit more what 23 you're -- yes, broadly, like every document related to 24 conditions of confinement at the MCC, I don't think that that 25 would fall under the Tartaglione withholding theory here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105722  19 L49KNEWM 1 THE COURT: Nor would Tartaglione justify -- the last 2 17, 18 days of Epstein's life, Tartaglione is not part of his 3 life, right? 4 MR. KOCHEVAR: So, there are, I think, possibly some 5 documents -- and this is -- I think I need to be careful, I 6 apologize but I have to be careful about -- there are certain, 7 I believe, what you might call more administrative documents, 8 where because they are not cellmates but they are still in the 9 same facility, and in some of these, frankly, they appear next 10 to each other by coincidence, but because their interactions, I 11 think even for some of those documents there are concerns about 12 release. So -- 13 THE COURT: Let me pin you down here. Paragraph 32 of 14 Capone describes categories of records withheld by BOP. And 15 I'm just zeroing in reports and evidence of Epstein's death on 16 August 10, 2019, period. That's between a semicolon right 17 there. I don't get it. Maybe there's something there that 18 looks historically back at the Tartaglione scene, but I'm 19 having difficulty understanding how something could be 20 withheld. A category as important to the FOIA request as that 21 on the basis of Tartaglione. That's very, very inexact. 22 MR. KOCHEVAR: Yeah, I think that is primarily the 23 theory that we've already discussed, that there are — I 24 believe -- again, I don't have this in front of me but I 25 believe that is the theory there. Although, again, I need to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105723  20 L49KNEWM 1 note that there is a broader concern here that because of all 2 the coverage of these cases, that I need to be clear that I 3 think there is a theory that extends beyond specific mentions 4 of Tartaglione, such that these documents could be withheld 5 more broadly than that just because the discussions about 6 Epstein's incarceration, they may have some bearing on 7 Tartaglione's -- 8 THE COURT: I don't follow. Let's suppose that the 9 New York Times gets the August 10th materials. Pretend Noel 10 isn't part of this, and so understand it's just on Tartaglione. 11 And suppose The New York Times does a soup-to-nuts description 12 of the last 24 hours of Epstein's life and the investigation 13 thereafter, and all that we have carved out is the events that 14 Tartaglione was percipient to and the condition of the joint 15 area that he and Epstein shared. So, maybe the Bureau of 16 Prisons comes across horribly for letting somebody die on their 17 watch and for any number of other misdeeds, but I don't 18 understand how that implicates the government's trial interests 19 in Tartaglione, where they are defending at the mitigation 20 stage against the theory that Tartaglione acted nobly in 21 reporting the suicide and endured crummy conditions when 22 bunking with Epstein. 23 MR. KOCHEVAR: I think the issue here is that 24 Mr. Tartaglione has claimed that his contacts with Epstein, 25 whatever they are, are going to reflect positively on him. And SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105724  21 L49KNEWM 1 so that means that the defense has put Epstein at issue, 2 Epstein's life, the details of his incarceration, at issue in 3 the penalty phase of a death penalty proceeding. 4 THE COURT: Sorry. That's a sound bite that you can 5 expect to read in an opinion of mine because the idea that 6 Epstein's life is triggered by the brief brush across the stage 7 of Mr. Tartaglione in the same scene as Epstein is just exactly 8 the problem here, which is, I'm unable to judge whether there's 9 been any rigorous attempt to tailor or whether the invocation 10 of Epstein has broadly been used to justify excessive 11 withholding. I'm not doubting there's something here that's 12 properly withheld; it's the linkage and it's a scale issue, and 13 I'm having difficulty with the idea that because Tartaglione 14 breathed the word "Epstein," quote, as you just put it, 15 Epstein's life now is off-limits. 16 MR. KOCHEVAR: Respectfully, the issue here is the 17 integrity of the criminal proceeding against Tartaglione. And 18 I think — and this will probably be an issue later on as well — 19 the government doesn't know exactly how a criminal trial will 20 go there. They don't know the theories that the defense is 21 going to put on. And I don't think that FOR -- FOIA, I think, 22 gives a zone, some breathing room there basically; and 23 specifically in this case, where we're way past the rational 24 link, this stuff has directly been put on the docket in a 25 criminal case that's been put at issue. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105725  22 L49KNEWM 1 So, with facts like that, I think there is a zone 2 beyond that where the government can reasonably say, listen, we 3 want to be careful and not affect a death penalty trial, and, 4 look, it's defense counsel has represented -- and we don't 5 really know exactly what they're talking about, I can't 6 represent exactly what they're talking about, but we know there 7 are going to be issues there. I think under the FOIA standard 8 of a rational link, I think that's exactly what Congress had in 9 mind in terms of carving out 7(A). FOIA is not supposed to 10 interfere with proceedings like that. 11 THE COURT: No, no, no, but you're assuming the 12 conclusion of interference. 13 Let me ask you this question: Can you assure me that 14 any document that has been withheld on the basis of 15 Tartaglione, either mentions Tartaglione, mentions July 23rd, 16 or mentions their common cell? 17 MR. KOCHEVAR: No, because I know of other 18 documents -- again, some of them are -- there is an issue here 19 because explaining some of this stuff -- there are also a 20 category of documents that I understand their appearance next 21 to each other to be essentially coincidental, but, given the 22 context here and given the issues that I just walked through, 23 there is a concern about releasing even documents that have 24 like a coincidental connection between -- oh, I'm sorry, 25 perhaps those documents would include the name, so perhaps that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105726  23 L49KNEWM 1 doesn't fall outside of the Court's question. 2 THE COURT: Look, in the end, I appreciate that you're 3 hamstrung to some degree in the explanation you can give, but I 4 think you can see the frustrating situation a court is put in, 5 being told rational relationship, zone, nexus, law enforcement, 6 but given the small role that Tartaglione plays even in the 7 Bureau of Prisons part of the Epstein life, you can understand 8 the concern. And it's magnified by at least the 9 nonpreservation presentation to the Court of anything that 10 would allow me to gauge how many of the 57 out of 60 categories 11 which have been withheld in full are being withheld in full on 12 the basis of Tartaglione. 13 Let's move on to Noel because I think you understand 14 the concern I'm raising here. 15 Noel — help me with this — I've read the indictment in 16 the case and I've tried to familiarize myself with the filings, 17 and I appreciate the gravity of the prosecution. The charges 18 relate uniquely to events that begin on August 9th. There is 19 background about this Epstein guy, and that he's at the MCC, 20 but the case is about the events of August 9th and 10th, 21 correct? 22 MR. KOCHEVAR: In terms of the immediate events that I 23 think are the subject of the charges, yes, but I want to -- and 24 I will unfortunately have to return to a theme here, that I 25 think the understanding is that it's possible that the trial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105727  24 L49KNEWM 1 could implicate times before then, for sure. 2 THE COURT: May I ask you a question. I mean, I 3 understand the reason why anyone paid any attention to the 4 alleged false statements and lapse by these defendants is 5 because of Epstein — that's what drew everyone's attention to 6 it — but at the end of the day, the offense here is not itself 7 immediately about Epstein, it's about the failure to do the 8 rounds, and the lie, and the coverup about it, right? 9 MR. KOCHEVAR: Again, I'm -- I think the answer to 10 your question is yes, but I have to caveat here, that I'm in a 11 little bit of a tricky position as an AUSA. I don't want to 12 say things that bind prosecutors in a criminal case -- 13 THE COURT: And you're not. I'm asking for your 14 understanding, and I'll make a record here that nothing you are 15 saying is binding; you're merely trying to capture what your 16 thought process, as a careful person of integrity, was in 17 participating in the FOIA decision-making process and in 18 justifying it to the Court. But, having been on the criminal 19 side of things as a prosecutor decades ago, I wouldn't have 20 wanted a FOIA statement to bind me, and nor does it. 21 So we've got a clear record on that. 22 MR. KOCHEVAR: Okay. 23 THE COURT: In other words, Epstein is what prompts 24 everyone to catch the violation here, but, at the end of the 25 day, Epstein's just another inmate who wasn't seen during the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105728  25 L49KNEWM 1 rounds and who is within the scope of the false statement 2 that's allegedly told by the defendants, right? 3 MR. KOCHEVAR: Yes — thank you for that, your Honor — 4 and, and, yes, I think, to some extent, you've actually put 5 your finger on why the withholdings extend back further, 6 because the case is, I think, in many ways about what happened 7 at -- like what BOP employees did at MCC. And that could 8 implicate sort of what typically happens at BOP or, for some of 9 the earlier documents, I think what specific people did at BOP 10 on certain dates. So -- 11 THE COURT: Wait a minute, wait a minute. Is what 12 you're saying that because there's going to be perhaps general 13 testimony of background at BOP, about the general procedures 14 and about the fact that on some prior days these defendants did 15 or didn't comply with their round-walking duties, essentially, 16 the Noel prosecution knocks out of bounds all Epstein-related 17 events, beginning with his admission to the MCC? The case is 18 fundamentally about a narrow 24-hour window, isn't it? 19 MR. KOCHEVAR: No. To be clear, I think BOP has 20 released a number of Epstein-related documents at this point, 21 so it's not like it covers everything of his time there. The 22 withheld ones, they do pertain in part to what you were just 23 talking about in terms of if there's going to be, I think -- 24 there's some expectation there's going to be evidence about 25 practices at MCC related specifically to Epstein or not. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105729  26 L49KNEWM 1 think beyond that, there's also a concern that, in addition to 2 just sort of what happens at BOP evidence, given the 3 circumstances, specific things about the events of June 23rd 4 and thereabout are also going to be brought up at that trial. 5 Again, though, I have to be -- I know this is somewhat 6 unsatisfying, but there is also the point that I don't know -- 7 the government doesn't know exactly what is going to happen 8 really at any criminal trial, of course, before it starts, but 9 particularly here, when the defense is entitled to put on what 10 case it will put on, and, given the circumstances and context 11 of this case, I think, again, as we just talked about with 12 Mr. Tartaglione, although possibly, to be clear, to an even 13 greater extent here because the Epstein things are directly 14 related to the liability pieces of the Noel criminal 15 proceedings, there's going to be a substantial zone of things 16 where it's an expectation of reasonable or reasonable 17 expectation of interference. 18 THE COURT: Let me push back a bit. 19 You have withheld an incident report of Jeffrey 20 Epstein's July 23rd, 2019, apparent suicide attempt. Putting 21 aside Tartaglione, it appears, from what the government has 22 submitted, that that has been withheld on the basis of Noel as 23 well. Is that true? And, if so, what's the justification? In 24 other words, what could a report about the July 23rd incident 25 have to do with the Noel and Thomas' failure to complete inmate SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105730  27 L49KNEWM 1 counts three weeks later? 2 MR. KOCHEVAR: So, I have to be careful about how 3 precise I get here, but there are people who work at BOP who 4 could be involved in multiple incidents that happened there, 5 and such that -- 6 THE COURT: In other words, hypothetically, it could 7 be a similar act, the same people could have failed -- if your 8 evidence was, the same people failed to do the rounds that day, 9 the government might want to offer that in evidence? 10 MR. KOCHEVAR: Again, I can't speak to -- and this is 11 actually going beyond me not wanting to bind anyone, I actually 12 don't know the specific -- 13 (Pause) 14 THE COURT: Hello? 15 MR. KOCHEVAR: -- cast of characters here that are 16 going to appear in multiple documents. And so, yes, there is a 17 concern that one side, a side, at a Noel trial would want to 18 rely on these. And I also think the particular context of this 19 case, and I guess the status of the defendants as employees, I 20 think there are concerns about witnesses and witness testimony, 21 and, again, all of that leads to a zone where release of many 22 of these documents, there is a risk that it would interfere, 23 there would be concerns about witnesses conforming their 24 testimony, you know, to documents, or being made aware of 25 things that they aren't aware of now. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105731  28 L49KNEWM 1 THE COURT: What about medical and psychological 2 records about Epstein? That's entry 19. How is that relevant 3 to the false count certifications in the Noel case? 4 MR. KOCHEVAR: So, I believe that many of the medical 5 records are already released, at least in part. I believe -- 6 THE COURT: In category 19, which is w