Federal trial resumes in San Francisco with reluctant jurors

SAN FRANCISCO -- The first federal trial in the Northern District of California resumed Monday despite concerns from some jurors who said they do not want to serve.

U.S. District Judge William Alsup allowed the criminal trial of suspected Russian hacker Yevgeniy Nikulin to proceed after nearly four months of delay with heightened COVID-19 precautions, including restrictions on how attorneys address jurors, changes in seating to allow for social distancing and a modified ventilation system that pumps fresh air into the courtroom. Both sides agreed to go down to as few as six jurors, if necessary, to avoid a mistrial.

Of 16 people in the jury pool, Alsup dismissed four. He denied requests from two others asking to be let go.

"I resent a lot of this," one said.

Nikulin faces more than 30 years in prison and $1 million in fines if convicted on nine counts related to stealing and exposing sensitive data of up to 100 million LinkedIn, DropBox and Formspring users in 2012. He pleaded not guilty to the charges in 2018 after a lengthy extradition fight from the Czech Republic.

The alleged hacker, described as the "Putin" of Russia's cyber underground by federal prosecutors, has been awaiting trial in prison for roughly 45 months. Alsup has repeatedly emphasized his pretrial detention is concerning since it could be longer than his sentence, if he were convicted.

The 75-year-old judge has paused the trial twice, once in April and again in June, because of Bay Area shelter-in-place orders. It started on March 9 and was halted on March 18. USA v. Nikulin, 16-CR-00440 (N.D. Cal., filed Oct. 20, 2016).

During the Monday Zoom video hearing, Alsup detailed steps the court has taken to protect jurors from COVID-19.

In addition to enforcing state-mandated social distancing and mask protocols at all times, Alsup said attorneys will wear face shields and address the court at the podium in front of him. Jurors are not likely to encounter many other people in the courthouse since there's only one jury trial at a time, he said, and noted the courtroom's ventilation system no longer recycles air.

Jurors will be placed in different areas of the courtroom, including in seats for the public, to ensure they are at least 6 feet apart.

"We can't just cut trials due to COVID-19," Alsup said. "[Defendants] have a right to due process."

But six of 16 total jurors -- 12 main and four alternate -- still requested to be dismissed. One said she might have been exposed to the virus through her husband, whose coworker tested positive. Two others said they have underlying conditions that worsen the illness.

Alsup dismissed four jurors who presented health-related hardships. He declined requests from one who said she has vacation plans next week and from another who expressed general concerns of getting the virus but said he was willing to serve upon further examination.

"Every one of us is concerned," Alsup told the juror. "If everyone is working on your job site everyday, this is not going to be any worse."

On allowing the trial to move forward with fewer than the required number of jurors, if necessary, defense attorney Adam Gasner said he came to the "gut-wrenching decision" after considering Nikulin's lengthy pretrial detention. Alsup said at a June hearing that getting another trial date for Nikulin would not be prioritized if the current jury is unable to proceed.

"Were this jury to hang and a mistrial be declared, the prospects in COVID-19 era of getting to a new trial seemed very bleak to me," he said.

With the new jury assembled, both sides delivered summaries of their arguments before trial was paused in March.

Assistant U.S. Attorney Michelle Kane portrayed Nikulin as an ordinary thief whose hacks on LinkedIn, DroxBox and Formspring were traced back to the Russian underground of cyber crime. Silicon Valley technology companies were all able to trace the origin of the attack back to a Russian IP address belonging to the email chinabig01@gmail.com, she said.

Federal prosecutors are looking for a conviction because of their extensive investigation into cyber crime, Gasner maintained. The true hacker likely used a proxy server, which is used to mask an IP address, to trick investigators, he said.

The trial is to wrap up by Friday.