Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 1 of 63
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Exhibit D
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Exhibit D
`
`
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 2 of 63
`
`UNITED STATES DISTRICT COURT
`
` FOR THE DISTRICT OF ARIZONA
`
` _________________
`
` vs.
`
`United States of America, )
` )
` Plaintiff, ) CR-18-0422-PHX-SMB
` )
` ) Phoenix, Arizona
` ) September 3, 2021
`Michael Lacey, ) 9:10 a.m.
`James Larkin, )
`Scott Spear, )
`John Brunst, )
`Andrew Padilla, )
`Joye Vaught,
` )
` )
` Defendants. )
`______________________________)
`
`
`BEFORE: THE HONORABLE SUSAN M. BRNOVICH, JUDGE
`
`
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`TRIAL - DAY 3 - A.M. SESSION
`
`
`
`
`
`
`
`
`
`
`
`
`
`Official Court Reporter:
`Linda Schroeder, RDR, CRR
`Sandra Day O'Connor U.S. Courthouse, Suite 312
`401 West Washington Street, Spc. 32
`Phoenix, Arizona 85003-2151
`(602) 322-7249
`
`Proceedings Reported by Stenographic Court Reporter
`Transcript Prepared by Computer-Aided Transcription
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 3 of 63
`
` 2
`
`A P P E A R A N C E S
`
`For the Government:
`
` U.S. Attorney's Office
` By: PETER SHAWN KOZINETS, ESQ.
` KEVIN M. RAPP, ESQ.
` MARGARET WU PERLMETER, ESQ.
` ANDREW C. STONE, ESQ.
` 40 North Central Avenue, Suite 1200
` Phoenix, AZ 85004
`
` U.S. Department of Justice
` By: REGINALD E. JONES
` 1400 New York Avenue NW, Suite 600
` Washington, DC 20530
`
`
`
`
`
`
`For the Defendant Lacey:
`
`
` Lipsitz Green Scime Cambria
` By: PAUL JOHN CAMBRIA, JR., ESQ.
` ERIN E. MCCAMPBELL PARIS, ESQ.
` 42 Delaware Avenue, Suite 120
` Buffalo, NY 14202
`
`For the Defendant Larkin:
`
` Bienert Katzman
` By: THOMAS HENRY BIENERT, JR., ESQ.
` WHITNEY Z. BERNSTEIN, ESQ.
` 903 Calle Amanecer, Suite 350
` San Clemente, CA 92673
`
`
`For the Defendant Spear:
`
`
` Feder Law Office
` By: BRUCE S. FEDER, ESQ.
` 2930 East Camelback Road, Suite 160
` Phoenix, AZ 85016
`
`
`For the Defendant Brunst:
`
`
` Bird Marella Boxer Wolpert Nessim Drooks
` Lincenberg & Rhow
` By: GOPI K. PANCHAPAKESAN, ESQ.
` GARY S. LINCENBERG, ESQ.
` 1875 Century Park E, Suite 2300
` Los Angeles, CA 90067
`
`UNITED STATES DISTRICT COURT
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 4 of 63
`
` 3
`
`For the Defendant Padilla:
`
` DAVID EISENBERG, PLC
` By: DAVID S. EISENBERG, ESQ.
` 3550 North Central Avenue, Suite 1155
` Phoenix, AZ 85012
`
`
`For the Defendant Vaught:
`
`
` JOY BERTRAND ESQ, LLC
` By: JOY MALBY BERTRAND, ESQ.
` P.O. Box 2734
` Scottsdale, AZ 85252
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 5 of 63
`
` 4
`
`INDEX
`
`SUMMARY OF COURT PROCEEDINGS
`
`Proceedings Outside Presence of Prospective Jury Panel 5
`Proceedings Outside the Presence of the Jury
` 25
`Preliminary Jury Instructions
` 46
`
`
`
`
`
` PAGE:
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 6 of 63
`
` 5
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`(Proceedings outside presence of prospective jury panel:)
`
`THE COURT: We are on the record outside the presence
`
`of the jury panel.
`
`So I was told that juror 18 wants to talk to us, and
`
`juror 33 is downstairs crying because he or she doesn't want to
`
`be here.
`
`So I'm going to call juror 33 up here and find out
`
`what the issue is. We haven't sworn in the jury, so we have
`
`some options that would otherwise not be available.
`
`And 33 would be on the jury if she can explain why she
`
`can't be here. So if juror 33 has to be excused, I can think
`
`of two ways to solve the problem. One, she becomes our first
`
`alternate, or, two, we redo the strikes with less strikes
`
`because we don't have as many jurors. So think about the
`
`options while we talk to her.
`
`MS. PERLMETER: Your Honor, if I may, Peggy Perlmeter
`
`for the United States.
`
`At some point, if we get to that point, the government
`
`would like to make a record about something that happened this
`
`morning that we think the Court should know about before we
`
`make a decision, how we need to redo strikes, if we need to,
`
`unless you would like me to do it now.
`
`THE COURT: What is the issue?
`
`MS. PERLMETER: Well, this morning the United States
`
`handed its final list of peremptories to the court reporter or
`
`UNITED STATES DISTRICT COURT
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 7 of 63
`
` 6
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`to --
`
`MR. LINCENBERG: Would you please speak into the
`
`microphone.
`
`MS. PERLMETER: This morning, prior to the start of
`
`court, the United States handed its final list of peremptory
`
`strikes to your courtroom deputy. She added it to her master
`
`list. Then the master list inadvertently was passed over to
`
`the defense, and Ms. Bernstein did take it over to the side of
`
`the defense courtroom near the pocket doors on the far side
`
`from the government's table. We observed her going over there
`
`to meet with her jury consultant. Mr. Lincenberg went over
`
`there at one point.
`
`Shortly after, it was discovered that the master list
`
`did have the government's strikes on there, so it was removed
`
`from the defense. But just to be safe, we would just like to
`
`make sure and have the defendants avow, one, they did not see
`
`any of the government's strikes, and, two, if they did, that
`
`they did not rely on any of that information to exercise their
`
`strikes, because what happened and what gives the government
`
`concern is that the defense spent about ten minutes going --
`
`putting together their final list before turning it into the
`
`courtroom deputy at about 8:40 this morning.
`
`THE COURT: And there are no overlaps. Ms. Bernstein?
`
`MS. BERNSTEIN: I'm, first of all, happy to complete
`
`the record, because Ms. Perlmeter left out quite a bit. When
`
`UNITED STATES DISTRICT COURT
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 8 of 63
`
` 7
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`it was handed to me by the courtroom deputy, we asked when we
`
`came in -- and the government knows this because we were all in
`
`the courtroom -- we said: Do we get a clean list? Is there a
`
`clean list? May we have a clean list?
`
`When we were given the master list, the government
`
`said: Our strikes are on there.
`
`I said: Shouldn't we have a clean list?
`
`We were told to use this.
`
`And I looked at them, and I said okay. So they know
`
`that I knew that I wasn't supposed to have that list, and we
`
`were trying to work that out.
`
`I can avow that we did not change anything. I mean, I
`
`don't think I have an obligation to show the Court, but I can
`
`show the Court what our strike list was coming into today, and
`
`they match what our strike list is on the sheet.
`
`THE COURT: Okay. Well, I needed you to avow to that.
`
`Do you have any other questions?
`
`MS. PERLMETER: No. That's all. We just want to make
`
`sure the process is fair and if they're going to avow, all of
`
`the defense attorneys, that they did not see the government
`
`strikes, and if they did, they did not rely on that information
`
`before submitting their final list to the courtroom deputy.
`
`MS. BERNSTEIN: Your Honor, again I'm the only person
`
`who had the list. I just avowed to that. I can show you our
`
`list from before, though I don't believe that calls for that.
`
`UNITED STATES DISTRICT COURT
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 9 of 63
`
` 8
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`And I would just ask that if the government's making a record,
`
`that it be complete, because it was noticeably absent of some
`
`facts I think Your Honor should have known.
`
`THE COURT: Elaine, can you get juror 33.
`
`MR. BIENERT: Your Honor, I have a short matter
`
`involving family members.
`
`THE CLERK: Can you get to a microphone.
`
`THE COURT: Can you -- Yeah.
`
`MR. BIENERT: Just very quickly, my client has six
`
`children. They're all adults. They're flying in. They're
`
`coming over just for his opening. I know there's tight space
`
`upstairs, and they're worried about spacing. They're all of
`
`course a family and vaccinated.
`
`We have four people over here that are coming down --
`
`certainly I am and my paralegal -- for opening. I was hoping
`
`they could come to this side and stand there for the opening
`
`and see it. But I know you all have a -- and these guys are
`
`doing a good job of making sure we follow the rules -- there's
`
`a limit of 20 people. And given that they're a family in a
`
`clump, I'm hoping that it would be okay if his family members
`
`for opening were standing up there where we would normally be.
`
`THE COURT: Oh, because you're saying there's only
`
`four dots?
`
`MR. BIENERT: Yes. And also they're only letting 20
`
`people up for distancing. And if we have 20 people and they're
`
`UNITED STATES DISTRICT COURT
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 10 of 63
`
` 9
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`on their way here, if 20 people show up -- I think there are
`
`about 12 or 13 now -- there's no room in the inn type of thing.
`
`And I was hoping that for the family members they can just be
`
`up in sort of our section.
`
`THE COURT: Well, they can be up there. It looks like
`
`there's a couple extra spots. So you just need to get a body
`
`up there to save a spot.
`
`MR. BIENERT: Can they lay out, you know, and take
`
`more space just like my kids would do? I guess the big
`
`question is is it okay if they're not all on dots since they're
`
`a family, and maybe they occupy three dots for six people
`
`instead of three people?
`
`THE COURT: Well, actually I'm uncomfortable with
`
`that. I know what you said. I get it. But I'm making
`
`everybody sit in spots even though you all work together every
`
`day. And they can still be next to each other. I mean, we can
`
`ask people to move so they can all six be in a row.
`
`MR. BIENERT: Okay. All right, Your Honor. That's
`
`all I have. Thank you.
`
`THE COURT: Thank you.
`
`(Panelist 33 entered the courtroom.)
`
`THE CLERK: Come in and stand right here for me, and
`
`I'll grab you a microphone.
`
`THE COURT: For the record, you're juror 33?
`
`PANELIST 33: Yes.
`
`UNITED STATES DISTRICT COURT
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 11 of 63
`
` 10
`
`THE COURT: Okay. And I understand there's something
`
`you wanted to tell us?
`
`PANELIST 33: Yes. When we were in the court, the
`
`prosecutor mentioned some things that I don't think I could be
`
`impartial.
`
`THE COURT: Okay.
`
`PANELIST 33: And I do not want to be here.
`
`THE COURT: Well, so what happened between when you
`
`were in here and now?
`
`PANELIST 33: Because she said that there was probably
`
`going to people coming to testify that I could not be impartial
`
`with.
`
`THE COURT: Okay. I need --
`
`PANELIST 33: Particularly people that are on drugs.
`
`THE COURT: Okay. And do you have some family history
`
`with that?
`
`PANELIST 33: Yes.
`
`THE COURT: Okay. Does the government have any
`
`follow-up questions?
`
`MS. PERLMETER: No, Your Honor. Thank you.
`
`THE COURT: Ms. Bernstein?
`
`MS. BERNSTEIN: No, Your Honor. Thank you.
`
`THE COURT: Anyone else? Mr. Lincenberg?
`
`MR. LINCENBERG: (Shakes head side to side.)
`
`THE COURT: If you just go back down to the jury room,
`
`UNITED STATES DISTRICT COURT
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 12 of 63
`
` 11
`
`we'll let you know.
`
`(Panelist 33 exited the courtroom. The Court and clerk
`
`confer off the record.)
`
`MR. LINCENBERG: Is 18 coming up?
`
`THE COURT: Yes. Sorry.
`
`(Panelist 18 entered the courtroom.)
`
`THE COURT: Okay. And just state your juror number.
`
`PANELIST 18: Juror 18.
`
`THE COURT: Okay. And I heard you had wanted -- made
`
`a request that you wanted to speak to us.
`
`PANELIST 18: I really don't think --
`
`(Reporter interrupts for clarification.)
`
`PANELIST 18: I'm very anxious for the last several
`
`days, and last night it was even worse.
`
`(Reporter interrupts for clarification.)
`
`PANELIST 18: Last night I couldn't sleep. I've been
`
`up since 2:30. It's not a matter of wanting, like the
`
`questions that were asked of me. I know a lot of people don't
`
`want to be here. It's not that. I just feel incredibly
`
`anxious about this whole situation. And I don't know if I
`
`would be able to do this every day for 50 days.
`
`THE COURT: And have you had anxiety issues before, or
`
`this is something new?
`
`PANELIST 18: Normally, no. The only time I felt this
`
`anxious was when I battled cancer. And I'm feeling bad again,
`
`UNITED STATES DISTRICT COURT
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 13 of 63
`
` 12
`
`and I don't know why. I don't know if it's the content or just
`
`the situation. But normally, no, I'm not an anxious person,
`
`and I'm very a very professional person. But for some reason
`
`this is really getting to me.
`
`THE COURT: Okay. Does the government have any
`
`questions?
`
`MS. PERLMETER: No, Your Honor. Thank you.
`
`THE COURT: Any of the defense?
`
`MS. BERNSTEIN: No, Your Honor.
`
`MR. LINCENBERG: Well, can we have a side bar?
`
`THE COURT: Sure. You can have a seat.
`
`(Bench conference on the record as follows:)
`
`MR. LINCENBERG: Is it the Court's position that this
`
`juror should be dismissed for cause -- for hardship?
`
`THE COURT: Yes.
`
`MR. LINCENBERG: I don't disagree.
`
`THE COURT: She can't --
`
`MR. LINCENBERG: I don't disagree. I just wanted to
`
`check, because we do think that because this juror's being
`
`dismissed for cause, we should have another strike. We used a
`
`strike, your peremptory, which were --
`
`THE COURT: Okay. Well, we can talk about that on the
`
`record without her.
`
`MR. LINCENBERG: Okay. I just wanted to make sure.
`
`Thank you, Your Honor.
`
`UNITED STATES DISTRICT COURT
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 14 of 63
`
` 13
`
`THE COURT: Okay.
`
`(End of bench conference.)
`
`THE COURT: Okay. Juror 18, if you'd just go back
`
`downstairs, we'll let you know.
`
`(Panelist 18 exited the courtroom.)
`
`THE COURT: Okay. So we are outside the presence of
`
`the jurors. Juror 33, for the record, she was visibly upset.
`
`I couldn't tell whether she was actually crying, but she was --
`
`her voice was shaky and was visibly upset. So I believe she
`
`needs to be struck for cause. Is there any objection from the
`
`government?
`
`MS. PERLMETER: No, Your Honor.
`
`THE COURT: From the defense?
`
`MR. LINCENBERG: No, Your Honor.
`
`MS. BERNSTEIN: No, Your Honor.
`
`THE COURT: And the same goes for juror 18. She
`
`wasn't quite as emotional, but she was -- her voice was shaky.
`
`She was clearly distraught. So I don't believe she was faking
`
`it. So I would strike her for cause as well.
`
`Any objection from the government?
`
`MS. PERLMETER: No.
`
`MR. LINCENBERG: No, Your Honor.
`
`THE COURT: Okay. So that means we're two down. And
`
`we do have to, because one of those was still on the list, we
`
`would have to reshuffle the list. So I guess we do have to
`
`UNITED STATES DISTRICT COURT
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 15 of 63
`
` 14
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`start over, because I don't know any other -- Well, unless we
`
`just go to 16 jurors. So, Mr. Lincenberg.
`
`MR. LINCENBERG: Well, I think we do need to restart
`
`the process.
`
`THE COURT: Let's see. And what's the government's
`
`position?
`
`MS. PERLMETER: Your Honor, could the members of the
`
`government confer for a couple of minutes?
`
`THE COURT: Sure. And for both sides, I just sort of
`
`did the math. So if we restart, there's going to be 17 strikes
`
`on the defense, 9 on the government. If we just lose her, we
`
`have 16.
`
`MR. LINCENBERG: Right. And so our request is that we
`
`get the 18 strikes. I would also note for the record, as the
`
`Court's considering these numbers -- and this is just my
`
`memory, although I conferred with defense counsel, so forgive
`
`me if I'm incorrect -- but when the Court ruled on the request
`
`for additional strikes, our memory was that the Court made it
`
`18 and 9. When we came into court the other day, the Court
`
`said it was going to be 18 and 10.
`
`And I double checked with folks to see if I was wrong,
`
`and they recall it being 18 and 9. Now, the Court makes its
`
`ruling, so if the Court changed it to 18 and 10 --
`
`THE COURT: Well, it was 15 and 9. When I decided to
`
`give you guys three extra, I decided to give them one. So if I
`
`UNITED STATES DISTRICT COURT
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 16 of 63
`
` 15
`
`misspoke, it was simply a misstatement.
`
`MR. LINCENBERG: And the Court has the discretion to
`
`make it 18 and 10. We're not -- I'm just raising it because
`
`we're getting into these numbers. And when we talk about the
`
`number of alternates, obviously we don't know how this is going
`
`to play out, who sort of had the level of anxiety or courage to
`
`speak up now, or how this is going to play out. But I just
`
`concluded a six-week trial.
`
`THE COURT: Where?
`
`MR. LINCENBERG: In Santa Monica state court. It was
`
`estimated at four weeks. We literally did closings Monday.
`
`Mr. Neuman gave the closing because I had to start coming out
`
`here. And we had a pretty good jury. I think we ended up --
`
`The judge had seven alternates for this what was estimated at a
`
`four- to five-week trial. We ended up, I think, losing three,
`
`three or four in this -- in what was a shortened time frame.
`
`And obviously we have a lengthier time frame. None of
`
`us know, you know, where things are going with COVID one way or
`
`the other and the anxiety level. But I do think it hearkens in
`
`favor of having a greater number of alternates here.
`
`Now, I don't want to argue away, you know, having 18
`
`strikes. We exercised our strikes before there was sort of a
`
`final cause determination, and we would like to get that strike
`
`back.
`
`THE COURT: Okay. I understand. I'd like to give it
`
`UNITED STATES DISTRICT COURT
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 17 of 63
`
` 16
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`to you, but we don't even have that many jurors.
`
`MR. LINCENBERG: Well, but it's in part why I just
`
`raised in terms of the number of government strikes. It may
`
`have -- Obviously it may have been a miscommunication. I can
`
`understand how the Court would have given the government an
`
`additional one. It's just what we remembered from it.
`
`THE COURT: Has the government finished conferring?
`
`MS. PERLMETER: Your Honor, we would prefer to keep
`
`the number of alternates high at five instead of losing an
`
`alternate, and we would propose that we proceed with one less
`
`juror on each side. So 9 for the government, 10 for the -- 17
`
`for the defense.
`
`THE COURT: Okay.
`
`MR. LINCENBERG: Well, I mean, if there's an
`
`alternative between four or five alternates, I think, I mean,
`
`versus losing a strike, we'd like the strike. So I think we
`
`need five alternates, but I don't think the solution to that
`
`should be to take away one of our strikes.
`
`THE COURT: Well, you can't -- we don't have enough
`
`jurors.
`
`MR. LINCENBERG: Well, the solution in that regard
`
`would be to redo it with the government having nine
`
`peremptories instead of ten.
`
`THE COURT: Okay. Yeah. I understand that. But both
`
`sides are entitled to peremptories. Both sides are entitled to
`
`UNITED STATES DISTRICT COURT
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 18 of 63
`
` 17
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`a fair trial. And the fairest resolution is that you both lose
`
`one.
`
`I understand you want 18, but we either lose an
`
`alternate, or both sides lose a strike. And the numbers work
`
`out that way.
`
`MS. BERNSTEIN: Your Honor, I would just note that,
`
`you know, though we have been trying to be cohesive to
`
`accelerate this process, we are six very differently situated
`
`defendants. And the Court recognized that in giving each
`
`defendant three strikes, because we do have different voices,
`
`we do have different concerns. So I don't know who gets short
`
`changed one of the strikes if we're only down to 17, and I
`
`certainly don't want it to be my client.
`
`THE COURT: Well, I could take it down to 12 and give
`
`the government -- Well, actually 13 is under the rules. So I
`
`could take it back down to 13, but you're still then one person
`
`gets an extra one if you're trying to divide them evenly. So
`
`even under the rules, you guys don't get an even number.
`
`MS. BERNSTEIN: I think the situation we're in is we
`
`need to figure out how to make this work with the numbers that
`
`we have, just noting that everything we've done over the past
`
`couple of days has been with each defendant understanding that
`
`they have three strikes to exercise. So I don't know how we
`
`decide who loses one.
`
`MR. LINCENBERG: I mean, obviously the Court has a lot
`
`UNITED STATES DISTRICT COURT
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 19 of 63
`
` 18
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`of discretion here. We don't have a big legal leg to stand on
`
`in this regard. I just think that, you know, if it's 18 and 9,
`
`it's two to one versus two to one and one-ninth. And I do
`
`think that's a fair solution. We exercised our strikes. I
`
`mean, your know, where the Court is at, is the Court saying,
`
`well, I don't want to lose the extra alternate; we have nobody
`
`else available; so it just ends up being tough luck for you
`
`guys on the defense the way it has worked out. And so we're
`
`arguing that --
`
`THE COURT: Well, they're getting one less strike too.
`
`MR. LINCENBERG: Well, but the government can make a
`
`record on that, but it seems to me that the fair solution,
`
`since the Court gave us 18 strikes on the defense, is to still
`
`give us 18 strikes after the --
`
`(Reporter interrupts for clarification.)
`
`MR. LINCENBERG: -- after the hardships.
`
`THE COURT: Doesn't that mean they get 8, so they lose
`
`two strikes, and you don't lose any?
`
`MR. LINCENBERG: I'm confused. They right now had ten
`
`strikes, and all ten of their strikes were strikes that were
`
`exercised, and those folks are now not being on the jury,
`
`right?
`
`THE COURT: We're going back to a clean slate of 43.
`
`Now there's only 43 jurors on the list. So 43 minus the 17
`
`that we need is 26. If I give you 18, they get 8, so they lose
`
`UNITED STATES DISTRICT COURT
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 20 of 63
`
` 19
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`2 strikes. You don't lose any. And on balance the --
`
`MR. LINCENBERG: So it's down to 43, not 44?
`
`THE COURT: Yes, 43. So, Elaine, do you have a clean
`
`list?
`
`THE CLERK: Yes. I need to make a copy. I need to
`
`make a copy.
`
`THE COURT: Let me ask you this. For the record, do
`
`you want me to have this list filed, the one that was before
`
`these people got struck?
`
`MR. LINCENBERG: Yes.
`
`MS. BERNSTEIN: Sure, Your Honor. Thank you. And if
`
`the master list, the clean master list that the sides receive
`
`right now, if that can indicate who's left, because I just have
`
`a number discrepancy. So it would be helpful if we could just
`
`get the list from you guys so we know who is left.
`
`THE COURT: I'm not sure what you mean.
`
`MS. BERNSTEIN: I don't see 43 remaining jurors, so I
`
`must have miscounted somewhere. But we were previously given
`
`the entire venire. So when it can be provided to us, if
`
`everyone who is no longer available can be taken out, that
`
`would just help to reconcile these lists.
`
`(The Court and clerk confer off the record.)
`
`THE COURT: We're on recess.
`
`(Proceedings recessed from 9:34 a.m. until 9:56 a.m.)
`
`THE COURT: So sorry that took so long. I wanted to
`
`UNITED STATES DISTRICT COURT
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 21 of 63
`
` 20
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`make sure everything got transferred correctly. And in doing
`
`that, we were coming up with a different number because I was
`
`working off a list that didn't include a no-show, so that's why
`
`your list is different.
`
`So there is 44, but I'm still keeping the numbers the
`
`way they are at 17 and 9. But I just wanted to let you know
`
`that I figured out why your number is different than mine.
`
`MR. LINCENBERG: Your Honor, just for the record, it
`
`ended up being 17 and 10, correct?
`
`THE COURT: 17 and 9.
`
`MR. LINCENBERG: Well, didn't the government exercise
`
`10 peremptories?
`
`THE COURT: Their first time around, yes.
`
`MR. LINCENBERG: Oh, so now I see we're going to redo
`
`it at 17 and 9?
`
`THE COURT: Correct.
`
`MR. LINCENBERG: Okay. Thank you, Your Honor.
`
`(Proceedings recessed from 9:58 a.m. until 10:28 a.m.)
`
`THE CLERK: Can I turn the sound on now?
`
`THE COURT: Yeah. Well, no. I'm sorry. Don't.
`
`Because I need to ask them. So it's muted?
`
`THE CLERK: For the jurors, yes.
`
`THE COURT: Okay. Are there any Batson challenges
`
`from the prosecution?
`
`MS. PERLMETER: We don't know who's left.
`
`UNITED STATES DISTRICT COURT
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 22 of 63
`
` 21
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`MR. RAPP: Don't know.
`
`THE COURT: Elaine, can you give the prosecution the
`
`defense list and the defense the prosecution list?
`
`THE CLERK: Give the defense the prosecution's list?
`
`THE COURT: Yeah, so they can see what the prosecution
`
`struck, and the government can see what the defense struck.
`
`Can I have the master list?
`
`THE CLERK: Yes.
`
`(The Court and clerk confer off the record.)
`
`THE COURT: Okay. Everybody seems to have settled
`
`down. Does the government have any motions?
`
`MS. PERLMETER: No, Your Honor.
`
`THE COURT: No?
`
`MS. PERLMETER: We have no Batson challenges either.
`
`THE COURT: Okay. Then we'll seat the jury, swear
`
`them in, and then we'll take a break.
`
`MR. LINCENBERG: I was looking to confirm with the
`
`government -- they needed a minute -- just so that we have an
`
`agreement.
`
`MS. BERNSTEIN: I confirmed with Agent Tolhurst.
`
`MS. PERLMETER: But our lists don't match up, so let
`
`me confirm.
`
`MR. LINCENBERG: The government is trying to reach a
`
`settlement agreement with itself.
`
`(The Court and clerk confer off the record.)
`
`UNITED STATES DISTRICT COURT
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 23 of 63
`
` 22
`
`MR. LINCENBERG: Would it be helpful for us to state
`
`publicly so we're all in agreement? I think that --
`
`THE COURT: What's the issue?
`
`MR. LINCENBERG: Just to make sure we know the
`
`jurors -- I think we've agreed who the jurors are, just so
`
`there's no confusion.
`
`THE COURT: Okay. I'll read who we have.
`
`MR. LINCENBERG: That would be great.
`
`THE COURT: And if you have a disagreement, we have a
`
`problem.
`
`Juror one.
`
`MR. LINCENBERG: Yes.
`
`THE COURT: 10, 12, 19, 21, 22, 32, 49, 55, 62, 65,
`
`67, 68, 84, 88, 93, and 97.
`
`MR. LINCENBERG: Correct.
`
`MS. PERLMETER: That's correct.
`
`MR. LINCENBERG: See, that was all easy.
`
`THE COURT: Good. Okay. So instead of having 45
`
`people squish in some corner, we're leaving them downstairs,
`
`and they're going to come up as we call them.
`
`Do you understand?
`
`THE CLERK: Hold on. Let me turn on the volume out
`
`there.
`
`THE COURT: Okay. We are back on the record with the
`
`jury present by video conference.
`
`UNITED STATES DISTRICT COURT
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 24 of 63
`
` 23
`
`So for the jurors in the jury room, I'm going to call
`
`the numbers of the jurors selected to try this case. If your
`
`number is called, please come forward, and Elaine will tell you
`
`where to come take a seat in the courtroom. So come up to the
`
`courtroom, and Elaine will direct you to your seat.
`
`Juror number one.
`
`Juror number 10.
`
`Juror number 12.
`
`Juror number 19.
`
`21.
`
`Juror 22.
`
`Juror 32.
`
`Juror 49.
`
`Juror 55.
`
`Juror 62.
`
`Juror 65.
`
`67.
`
`68.
`
`Juror 84.
`
`Juror 88.
`
`Juror 93.
`
`And juror 97.
`
`I'd ask the remaining jurors to wait in the jury
`
`room to make sure that we have everybody we need, and then I'll
`
`release you but not yet.
`
`UNITED STATES DISTRICT COURT
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 25 of 63
`
` 24
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Elaine, do you want to go to the door.
`
`THE CLERK: After 68, who was -- Who was after 68?
`
`I'm sorry.
`
`That way I can seat them in the right order.
`
`(The Court and clerk confer off the record. Jurors entered
`
`the courtroom.)
`
`THE COURT: For the jurors in the jury room, I want to
`
`thank you for your time during this jury selection process, but
`
`you're now excused. Thank you.
`
`Okay. You 17 are our trial jurors, so in a minute I'm
`
`going to have Elaine show you the jury room is where you'll go
`
`on breaks. We also have a different room for you for lunch
`
`where you could be more spaced out.
`
`And she'll talk to you about some of them, and then
`
`we're going to take a break, because we've all been working.
`
`And then we'll come back in to do preliminary instructions and
`
`get started with the case.
`
`But before we do that, if you could all stand and
`
`raise your right hand to be sworn in as trial jurors.
`
`(Trial jurors sworn.)
`
`THE COURT: All right. And one other little
`
`admonishment. I'm going to read a whole instruction on what
`
`you can and cannot do as jurors, but until I read that to you,
`
`just remember you can't have any contact with the lawyers or
`
`the parties, and they all know that, so if -- even me. So if
`
`UNITED STATES DISTRICT COURT
`
`
`
`Case 2:18-cr-00422-SMB Document 1355-5 Filed 10/20/21 Page 26 of 63
`
` 25
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`any of them pass you in the hallway and just ignore you,
`
`they're instructed to. So they're not being rude.
`
`And you also can't talk to any press or even your
`
`family about what the case is about. You can tell your family
`
`and employer that you're on a trial and how long it's supposed
`
`to last, but that's all you can tell them. All right.
`
`Elaine, can you show them to the back in that little
`
`area we have in the back.
`
`(The jury exited the courtroom at 10:54 a.m.)
`
`THE COURT: Okay. The door closed. So I had e-mailed
`
`you guys a corrected draft of the preliminary instructions. It
`
`on purpose doesn't include a First Amendment instruction. I
`
`did receive, Mr. Cambria, your additional filing for specific
`
`instructions for preliminary. I have done the research,
`
`considered the arguments that were previously presented, the
`
`new information you presented, and have declined to include
`
`that in the preliminary jury instructions.
`
`So other than that, does the government have any
`
`typos, corrections, additions?
`
`MS. PERLMETER: No, Y
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
