Richard Usher, a former JPMorgan Forex trader known for his participation in the “Cartel” chatroom, will have to destroy the evidence used in the criminal proceedings against him. This becomes clear from an order signed by Judge Richard M. Berman of the New York Southern District Court on September 27, 2021.
The order concerns the evidence used in the criminal proceedings against Usher that resulted in his acquittal back in 2018.
Let’s recall that, in January 2017, a grand jury indicted Usher and two other traders for their alleged roles in a conspiracy to manipulate the price of U.S. dollars and euros exchanged in the FX spot market. In connection with that criminal proceeding, Usher entered into a protective order providing that he could use documents disclosed by the government in discovery “only for the purposes of the defense of, and the pursuit of any appeals in, this criminal action.”
The protective order further provided that any documents disclosed to Plaintiff “[s]hall be returned to the Government or destroyed following the conclusion of this case . . . , together with any and all copies thereof.”
In October 2018, a jury acquitted Usher of the criminal charges against him. Because his criminal case had concluded, he was required to “return” or “destroy” all documents that the government had produced to him in discovery, “together with any and all copies thereof.” Instead, Usher retained the documents.
Usher sought to retain the documents. He argued the evidence could potentially be relevant to future litigations in which he may need to defend himself.
The DOJ opposed Usher’s motion, noting that he makes no attempt to identify particular documents that he finds particularly helpful to him or exculpatory – and “surely, in a pool of 2.8 million records, in a matter in which a grand jury found probable cause to indict Mr. Usher, they cannot all be exculpatory”.
According to the DOJ, the Court should also reject Usher’s request that the Government be ordered to retain the entire set of criminal discovery until late 2024, just in case he needs it. A vague and hypothetical desire for another party’s documents is unavailing, the DOJ said.
On September 27, 2021, the Court sided with the DOJ. The Judge said that the Government will not be required to maintain possession of the documents (and the information contained therein) disclosed by the Government in discovery and otherwise in this case.
The defendant is required to destroy all disclosed documents forthwith, and in no event later than October 4, 2021.