UNITED STATES DISTRICT COURT 

DISTRICT OF MASSACHUSETTS 

UNITED STATES OF AMERICA 

 v. 

GREGORY COLBURN et al., 

 Defendants 

 No. 1:19-CR-10080-NMG 

 

JOINT RESPONSE TO COURT NOTICE (DKT. 1648) 

Defendants Gamal Abdelaziz, John Wilson, Homayoun Zadeh, and Robert Zangrillo (“the 

defendants”) and the government respectfully submit this joint response to the Court’s November 

25, 2020 Notice (Dkt. 1648). 

The parties are mindful of the Court’s desire to try this case expeditiously. The parties 

share that desire and seek a realistic trial date as soon as practicable. The motion to continue the 

current date was filed only after extensive discussions about finding a date that would allow the 

parties to safely prepare their witnesses, and to have those witnesses testify, in a courtroom that 

can accommodate the parties, the witnesses, and their counsel. The parties believe that September 

2021 is a date that is likely to hold, and that a continuance to that date would be reasonable in light 

of the ongoing pandemic and because of issues specific to this case that are not present in other 

cases tried or scheduled for trial during the pandemic, including the fact that there are four 

defendants and that almost all of the witnesses are from outside of Massachusetts.1 

In response to the Court’s specific questions: 

 

1

 As previously noted, the parties have proposed June 2021 as an earlier alternative, though 

one that is less preferable given that it does not avoid all the concerns set forth herein. 

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First, the Court asked why discovery and trial preparation cannot be adequately 

accomplished by video conference. The parties agree that videoconferencing may be adequate to 

prepare certain out-of-state witnesses whose testimony is limited in scope, and/or does not involve 

numerous exhibits. The government estimates that there are at least half a dozen witnesses it could 

prepare in this manner. In this case, however, many witnesses—all of whom reside out of state—

are expected to testify at length on direct and cross-examination.2 Their testimony will involve 

hundreds of exhibits, including documents and audio recordings. The parties respectfully submit 

that videoconferencing is not an adequate substitute for in-person preparation of such witnesses. 

It cannot, for instance, replace the nonverbal cues between lawyers and clients (or lawyers and cocounsel), which can be just as important as the words spoken, but are missed when communicating 

via video. It likewise hampers lawyers’ ability to pick up on nonverbal cues from witnesses. It 

imposes heightened burdens on witnesses—including third-party civilian witnesses—by 

increasing the amount of time needed to prepare due to unavoidable communication lags and other 

technological issues, as well as the fact that presenting exhibits to a witness remotely, or playing 

audio remotely, can be cumbersome.3 Thus, while videoconferencing has allowed some cases in 

this district to proceed, it is substantially more difficult in a case involving as many witnesses, 

exhibits, defendants and attorneys as this one. And no case has, to date, required preparing the 

majority of trial witnesses via videoconference, as this one would.4

 

2

 The defendants may also testify, and any such testimony would likely also be extensive. 

3

 Emailing or sending exhibits to witnesses in advance would help but it does not solve the 

problem, particularly given that witnesses may not be able to have even their own counsel present 

with them in person to orient them to the documents. 

4

 The defendants anticipate that a February trial date may prompt witnesses from California 

and other states to seek to avoid receiving trial subpoenas and then move to quash on the grounds 

of their age or medical vulnerabilities or that of their families, given that appearance at trial will 

require cross-country round-trip air travel and both Massachusetts and California currently require 

travelers entering from other states to quarantine for 14 days upon arrival. The defendants also 

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Second, the Court has asked how many people associated with this case are 65 years old 

or older. The answer is multiple. Attorneys for defendants Abdelaziz and Zangrillo are over 70 

years old. Several likely witnesses and/or their attorneys are also over 65 years old, including 

those set forth in the accompanying ex parte declarations. The parties do not know how many 

witnesses reside with other adults over 65 years old, or with otherwise vulnerable family members. 

Other attorneys associated with this case, on both sides, have conditions, or immediate family 

members with conditions, that the CDC classifies as creating an increased risk for severe illness, 

hospitalization, or death from COVID-19. As set forth in the accompanying sealed and ex parte 

declarations from defense attorneys, counsel are currently following the direction of the public 

health authorities in this regard. 

The defendants acknowledge and respect that the Court is willing to try this case with 

appropriate precautions, but note that proper preparation for and participation in a four-defendant 

criminal trial from a witness’s or attorney’s perspective requires a significant amount of close 

contact with others. These risks are even more significant in a multi-defendant trial that is likely 

to last four or five weeks—and perhaps longer, depending on the length of any defense cases and 

whether any of the defendants choose to testify—in a closed courtroom. The defendants 

respectfully state that they are not willing to have any of their attorneys withdraw from the case to 

accommodate an earlier trial date, and that requiring withdrawal of counsel based on age or 

underlying medical conditions, or setting the trial date in a manner that forces counsel of advanced 

 

have significant concerns about their ability to adequately defend their clients during trial given 

current restrictions such as social-distancing and masking that will make real-time 

communications with clients and co-counsel difficult if not impossible. The defendants 

respectfully suggest that these issues raise substantial implications for the defendants’ Sixth 

Amendment rights to effective assistance of counsel, especially in the context of a multi-defendant 

trial. 

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age or with underlying medical conditions to withdraw, would have serious implications for the 

defendants’ Sixth Amendment rights.5 To the extent possible, the government seeks to avoid 

creating additional appellate issues in this regard. 

 Third, the Court noted that the parties will each be limited to two attorneys, with paralegals 

and support staff in another courtroom. Even with such restrictions, however, and assuming only 

two alternate jurors—a number that is likely insufficient in a case such as this one—there is no 

courtroom of which the parties are aware that could accommodate 30 or more individuals while 

adhering to social distancing protocols.6 

 In addition, the government respectfully submits that further severing the case into twodefendant trial groupings would not wholly address the problem, because it would still require that 

the remaining defendants be tried at a later date. Moreover, the government submits that 

severance—as compared to a seven-month delay—is not in the public interest. Should the Court 

sever the defendants in this trial and the six remaining in the April trial, the result would be as 

many as five trials in this case. Even if some defendants plead guilty—a prospect that is unlikely 

as to the four remaining defendants in this trial—there would necessarily be multiple trials, 

imposing a far greater burden on the witnesses, the Court, the government, and the public (via jury 

selection) than a continuance of several months. 

 

5 See United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (Scalia, J.) (“Where the right 

to be assisted by counsel of one's choice is wrongly denied, therefore, it is unnecessary to conduct 

an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of 

the right is ‘complete’ when the defendant is erroneously prevented from being represented by the 

lawyer he wants...”). 

6

 The defendants note that the public will not be able to observe the proceedings in-person 

and that the exclusion of family members from the courtroom will seriously prejudice them. 

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5 

 Fourth, the defendants note that jury selection will be more difficult in this case given the 

substantial media attention that the case has received.7 

Finally, the Court noted that the motion did not provide a supporting citation for the 

proposition that COVID-19 will have abated by September 2021. The parties acknowledge that 

there is no date certain by which the pandemic will end. However, public health officials have 

made clear that an effective COVID vaccine is likely to be widely available to adults in the United 

States by late spring of 2021. In a November 19, 2020 interview, the Director of the National 

Institute of Allergy and Infectious Diseases, Dr. Anthony Fauci, stated: “I think we’re going to 

have some degree of public health measures together with the vaccine for a considerable period of 

time. But we’ll start approaching normal—if the overwhelming majority of people take the 

vaccine—as we get into the third or fourth quarter [of 2021].”8 Similarly, a recent report from 

McKinsey & Company stated: 

The positive readouts from the vaccine trials mean that the United States will most likely 

reach an epidemiological end to the pandemic (herd immunity) in Q3 or Q4 2021. An 

earlier timeline to reach herd immunity—for example, Q1/Q2 of 2021—is now less likely, 

as is a later timeline (2022).9

 For the foregoing reasons, it is reasonable to assume that the parties (and witnesses) will 

be able to be fully vaccinated by the summer, thus allowing one or two months for counsel to meet 

with witnesses and prepare for a September trial. Such a schedule would be consistent with the 

 

7

 The defendants reserve their rights with respect to Constitutional challenges to the current 

jury selection process. 

8

 Elisabeth Rosenthal, When Will We Throw Our Masks Away? I asked Dr. Fauci, New 

York Times (Nov. 19. 2020). 

9

 https://www.mckinsey.com/industries/healthcare-systems-and-services/our-insights/whenwill-the-covid-19-pandemic-end#. The defendants separately note that, as recent news reports 

suggest, it is possible that the vaccine will be widely distributed by June but it is currently unclear 

whether both doses (given three or four weeks apart) will be distributed by June, or whether the 

population will have had time to develop sufficient antibodies from the vaccinations by June. 

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6 

deadlines for reciprocal pretrial disclosures and in limine motions contemplated by the Court’s 

pretrial scheduling order. And, importantly, the parties expect that a September date is realistic 

and will hold, and they do not expect to seek additional continuances.10 The parties note that they 

do not seek a delay for delay’s sake, or for some tactical or strategic purpose. The parties share 

with the Court a desire and a willingness to try this case as soon as is reasonably practical and 

safely possible. The parties respectfully submit, however, that the earliest, most realistic such date 

is September 2021. 

Dated: December 4, 2020 

Respectfully submitted, 

ANDREW E. LELLING 

United States Attorney 

By: /s/ Stephen E. Frank 

 /s/ Karin M. Bell 

 JUSTIN D. O’CONNELL 

 LESLIE A. WRIGHT 

 KRISTEN A. KEARNEY 

 KARIN M. BELL 

 STEPHEN E. FRANK 

 

 

10 The government is cognizant that there is currently also an April trial scheduled in this 

case and that the arguments set forth here may also apply to that trial. However, the government 

submits that a continuance of the April trial is premature at this time. Some of the defendants in 

that trial may yet choose to resolve the charges, which in the government’s view, could permit the 

proceedings to be reconsolidated. 

/s/ Brian T. Kelly 

Brian T. Kelly (BBO No. 549566) 

Joshua C. Sharp (BBO No. 681439) 

Lauren M. Maynard (BBO No. 698742) 

NIXON PEABODY LLP 

53 State Street 

Boston, MA 02109 

617-345-1000 

bkelly@nixonpeabody.com 

jsharp@nixonpeabody.com 

lmaynard@nixonpeabody.com 

Robert Sheketoff (BBO No. 457340) 

One McKinley Square 

Boston, MA 02109 

617-367-3449 

Counsel for Gamal Abdelaziz 

 

Case 2:18-cr-00422-DJH Document 1113-1 Filed 01/19/21 Page 6 of 8
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/s/ Martin G. Weinberg 

Martin G. Weinberg 

Mass. Bar No. 519480 

20 Park Plaza, Suite 1000 

Boston, MA 02116 

(617) 227-3700 

owlmgw@att.net 

Matthew L. Schwartz (pro hac vice) 

BOIES SCHILLER FLEXNER LLP 

55 Hudson Yards 

New York, NY 10001 

Tel.: (212) 446-2300 

E-mail: mlschwartz@bsfllp.com 

Counsel for Robert Zangrillo 

/s/ Michael Kendall 

Michael Kendall (BBO # 544866) 

Yakov Malkiel (BBO # 689137) 

WHITE & CASE LLP 

75 State Street 

Boston, MA 02109-1814 

Telephone: (617) 979-9310 

michael.kendall@whitecase.com 

yakov.malkiel@whitecase.com 

Andrew E. Tomback (pro hac vice) 

McLAUGHLIN & STERN LLP 

260 Madison Ave. 

New York, NY 10016 

Telephone: (212) 455-0438 

atomback@mcloughlinstern.com 

Counsel for John Wilson 

/s/ Tracy A. Miner 

Tracy A. Miner (BBO No. 547137) 

Megan A. Siddall (BBO No. 568979) 

MINER ORKAND SIDDALL LLP 

470 Atlantic Ave, 4th Floor 

Boston, MA 02110 

Tel.: (617) 273-8377 

tminer@mosllp.com 

msiddall@mosllp.com 

Counsel for Homayoun Zadeh

Case 2:18-cr-00422-DJH Document 1113-1 Filed 01/19/21 Page 7 of 8
CERTIFICATE OF SERVICE 

I hereby certify that a copy of the forgoing was filed electronically on December 4, 2020, and 

thereby delivered by electronic means to all registered participants as identified on the Notice of 

Electronic Filing. 

 

/s/ Joshua C. Sharp 

 Joshua C. Sharp 

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