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Law360, San Francisco (July 6, 2020, 10:13 PM EDT ) A California federal jury trial for a Russian man whom the U.S. government accuses of breaching LinkedIn and Dropbox resumed Monday in San Francisco after a nearly four-month hiatus prompted by COVID-19 concerns, making it the first jury trial in the Northern District of California since the pandemic began.
Yevgeniy Nikulin, who has been in pretrial detention for four years, appeared in U.S. District Judge William Alsup's courtroom in person and before a jury on Monday for the first time since the pandemic interrupted his trial in mid-March.
Prosecutors say Nikulin and co-conspirators may have exposed over 100 million users' data.
Before resuming the trial, which is being live-streamed, Judge Alsup gave all the jurors a chance to voice hardships related to COVID-19 and ultimately excused four jurors, bringing the total to just a dozen.
Judge Alsup also carefully described the precautions the court is taking to maintain social distancing, saying everyone must wear masks at all times, except witnesses, who are seated behind plexiglass. The judge stressed the importance of seeing the witnesses' faces, saying "some people just sit in that box and they just lie."
Other precautions include using the elevator one at a time, placing jurors more than 6 feet apart and giving the jury a separate courtroom for deliberations, the judge said.
The government continued presenting its case on Monday, calling among other witnesses CIA special agent Richard LaTulip to the stand. LaTulip focused much of his testimony on Ukrainian citizen Oleksandr Ieremenko, accused of conspiring with Nikulin; Ieremenko is also accused of infiltrating the U.S. Securities and Exchange Commission's filing system and accessing the servers of newswires in an insider trading scheme.
LaTulip said that Ieremenko has been indicted but that the Ukrainian government has refused to arrest him or extradite him to the U.S.
"He is continuing to hack," LaTulip said.
Unlike Ieremenko, Nikulin has been in custody since shortly after a federal grand jury indicted him for allegedly using stolen identities to break into databases owned by LinkedIn Corp., Dropbox Inc. and now-defunct social media questionnaire company Formspring Inc. in 2012.
Nikulin's indictment came down two weeks after U.S. officials said the Russian government was behind a cyberattack of the Democratic National Committee that led to the disclosure of tens of thousands of internal emails on WikiLeaks and elsewhere, saying the hack was "intended to interfere with the U.S. election process."
The Czech Republic ordered Nikulin extradited to the U.S. in 2016, against the wishes of Russia, which wanted to prosecute him on a separate case.
Nikulin pled not guilty in March 2018.
Nikulin's attorney, Adam Gasner, told Judge Alsup on Monday that they made the "gut-wrenching decision" to allow for as few as six jurors to hear the case, determining there to be a "very bleak" prospect of otherwise getting to a trial in the COVID-19 era.
Gasner briefly addressed the jury, saying the government had shown no evidence that Nikulin was responsible for the hacks, and suggesting that a proxy server was used to mask the original IP address and that the government had the wrong guy.
Prosecutors called to the stand LinkedIn's former senior director of engineering, Ganesh Krishnan, who said Monday the "anomalous activity" discovered by its engineers appeared to have originated in the Russian Federation. He said LinkedIn's investigation did not identify a person behind the data breach.
On cross-examination, Krishnan told the court he could not tell if a proxy server had been used or how many individuals carried out the attack.
"We weren't trying to find out who the individual was, we were trying to stop the breach," Krishnan testified.
Gasner told Law360 in a statement that Monday's proceedings were "by far, the most unusual day in court I have ever participated in. Everyone was wearing masks and the jury and the other parties involved in this trial were spread out to every corner of the courtroom.""
But Gasner said it's "essential that the accused get their day in court, especially when they are locked up pending trial." He said the pretrial detention has felt like "an eternity" for Nikulin.
The government did not immediately respond to a request for comment Monday afternoon.
The government is represented by Michelle Kane of the U.S. Attorney's Office for the Northern District of California.
Nikulin is represented by Adam G. Gasner of Law Office of Adam G. Gasner and Valery Nechay of the Law Office of Valery Nechay.
The case is U.S. v. Yevgeniy Aleksandrovich Nikulin, case number 3:16-cr-00440, in the U.S. District Court for the Northern District of California.
--Editing by Brian Baresch.
For a reprint of this article, please contact reprints@law360.com.
