Case 3:18-cr-04683-GPC Document 228 Filed 01/26/21 PageID.2368 Page 1 of 7
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`ROBERT S. BREWER, JR.
`United States Attorney
`MELANIE K. PIERSON
`SABRINA L. FEVE
`ASHLEY E. GOFF
`Assistant U.S. Attorney
`California Bar Nos.: 112520/226590/299737
`Office of the U.S. Attorney
`880 Front Street, Room 6293
`San Diego, CA 92101
`Tel: (619) 546-7976
`Fax: (619) 546-0631
`Email: Melanie.Pierson@usdoj.gov
`
`Attorneys for the United States
`
`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`UNITED STATES OF AMERICA,
`Case No.: 18cr4683-GPC
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`Plaintiff,
`GOVERNMENT’S MOTIONS IN
`
`LIMINE TO:
`v.
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`1. SET REASONABLE TIME
`JACOB BYCHAK (1),
`LIMITS
`MARK MANOOGIAN (2),
`2. PRECLUDE SPEAKING
`ABDUL MOHAMMED QAYYUM (3),
`OBJECTIONS
`PETR PACAS (4),
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`Defendants.
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`Due to the number of defendants and counsel participating in this case and in view
`of the lengthy pre-trial litigation in this case, the United States requests that the court issue
`an order setting reasonable time limits for the parties to present their case and precluding
`speaking objections, in order to streamline the presentations at trial.
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`Respectfully submitted,
`
`DATED:January 26, 2021
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`
`
`ROBERT S. BREWER, JR.
`United States Attorney
`
`/s/Melanie K. Pierson
`Assistant United States Attorney
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`Case 3:18-cr-04683-GPC Document 228 Filed 01/26/21 PageID.2369 Page 2 of 7
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`MEMORANDUM OF POINTS AND AUTHORITIES
`A. THE COURT SHOULD ESTABLISH REASONABLE TIME LIMITS FOR TRIAL
`1. Introduction
`While the typical criminal case in this District does not require time limits on the
`presentation of evidence, this is no ordinary case. The Court is well aware of this case’s
`complexity and the robust defense coordinated across four separate defense teams and
`multiple motions to dismiss. To satisfy its evidentiary burden, which will include
`factfinding on the nature of IP addresses as well as the defendants’ alleged theft and misuse
`of these technological assets, the Government anticipates calling approximately 30
`witnesses in its case-in-chief and has marked approximately 300 exhibits to date. The
`Government currently estimates that its case-in-chief will last approximately 2-3 weeks.
`The actual length will depend in part on the time consumed by cross-examination of each
`witness by some of the eight separate defense counsel who have entered appearances in
`this case. Defendants have also suggested that they will present a case through percipient
`and expert witnesses. This defense case likely will require the Government to present a
`rebuttal case. Therefore, particular circumstances of this case present a significant risk that
`a trial without appropriate limits will devour far more time than necessary for each party
`to fairly and effectively present its case to the jury.
`2. The Court Has the Authority to Establish Reasonable Time Limits.
`“Trial courts have broad authority to impose reasonable time limits” during trials.
`Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). This authority derives
`from “the inherent power of a district court to manage cases before it in a just and efficient
`manner.” United States v. Cousar, 2007 WL 4456798, *1 (W.D. Pa. Dec. 16, 2007)
`(imposing time limits on both parties in criminal fraud trial). See also F. R. Evid. 611(a)
`(“The court shall exercise reasonable control over the mode and order of examining
`witnesses and presenting evidence so as to: (1) make those procedures effective for
`determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment
`or undue embarrassment.”); Fed. R. Evid. 403 (“The court may exclude relevant evidence
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`Preclude Speaking Objections
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`Case 3:18-cr-04683-GPC Document 228 Filed 01/26/21 PageID.2370 Page 3 of 7
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`if its probative value is substantially outweighed by the danger of. . .undue delay, wasting
`time, or needlessly presenting cumulative evidence.”). “In criminal cases, time limits,
`while permissible (and even encouraged), are not meant to be enforced inflexibly.” United
`States v. Ackerly, 2018 WL 443449 (D. Massachusetts). While rigid time limits are
`disfavored, it is not an abuse of discretion for the court to enforce time limits. General
`Signal Corp v. MCI, 66 F. 3d 1500,1509 (9th Cir.1995). Similarly, it is not a violation of
`due process to limit a defendant’s testimony where further testimony would be cumulative.
`United States v. Scott, 789 F. 2d 795, 799 (9th Cir.1986); United States v. Hay, 122 F. 3d
`1233, 1237 (9th Cir.1997); United States v. Tilley, 326 Fed. Appx. 96 (3rd Cir.2009).
`The Supreme Court has recognized the vital role of district courts in securing the
`orderly and efficient administration of justice in criminal trials:
`Our cases have consistently recognized the important role the trial judge plays
`in the federal system of criminal justice. The judge is not a mere moderator,
`but is the governor of the trial for the purpose of assuring its proper conduct
`and of determining questions of law. A criminal trial does not unfold like a
`play with actors following a script; there is no scenario and can be none. The
`trial judge must meet situations as they arise and to do this must have broad
`power to cope with the complexities and contingencies inherent in the
`adversary process. To this end, [the trial judge] may determine generally the
`order in which parties will adduce proof; [the judge’s] determinations will be
`reviewed only for abuse of discretion. Within limits, the judge may control
`the scope of rebuttal testimony; may refuse to allow cumulative, repetitive, or
`irrelevant testimony; and may control the scope of examination of witnesses.
`If truth and fairness are not to be sacrificed, the judge must exert substantial
`control over the proceedings.
`
`
`Geders v. United States, 425 U.S. 80, 86-87 (1976) (internal citations and quotations
`omitted).
`District courts repeatedly have relied on the Federal Rules of Evidence and these
`established principles as providing authority to impose reasonable time limits in criminal
`trials. See, e.g., United States v. Cousar, 2007 WL 4456798 at *5 (W.D. Penn. Dec. 16,
`2007) (in multi-defendant fraud case, district court provided United States with “40 hours
`of trial time” and each defendant with “12 hours of trial time”). To be sure, the setting of
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`Preclude Speaking Objections
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`reasonable time limits may not be done in arbitrary fashion. Rather, the district court should
`engage in “an informed analysis based on a review of the parties’ proposed witness lists
`and proffered testimony, as well as their estimates of trial time.” United States v.
`Hildebrand, 928 F. Supp. 841, 848 (N.D. Iowa 1996) (citation omitted).
`The Hildebrand court adhered to the following guidelines:
`[T]he court finds the following general principles should guide the court in
`fashioning appropriate limitations for the sake of comprehensibility,
`economy, and fairness: (1) the court must impose no restriction that causes
`the information presented to become incomprehensible; and (2) no restriction
`or limitation should be imposed arbitrarily. In aid of these principles, the court
`will be guided by these general rules: (1) limitations must only be imposed
`when necessary to the just and efficient presentation of evidence, or, to put it
`another way, “if it isn’t broken, don’t fix it,” which means leave areas that do
`not appear to be a problem well enough alone; (2) limitations should be made
`on the basis of an informed analysis, including review of proposed witness
`lists and proffered testimony, exhibits, or estimates of trial time; (3) no
`limitation may be imposed without balancing probative value against issues
`of delay, confusion, or waste of time pursuant to Fed. R. Evid. 403 and 611;
`(4) the parties should be allowed to decide how best to use whatever allotment
`is given them; (5) any pre-trial limitations must be flexibly administered
`during trial to prevent any sacrifice of justice to efficiency; (6) changes in
`allotments, either admitting additional evidence or testimony or precluding
`more evidence or testimony than anticipated, must only be made with notice
`and upon a determination of need.
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`Id. at 848-49; see also United States v. Reaves, 636 F. Supp. 1575 (E. D. Ky. 1986) (“This
`court holds that it has the power to impose reasonable time limits on the trial of both civil
`and criminal cases in the exercise of its reasonable discretion. Of course, the court must
`analyze each case carefully to assure that the time limits set are not arbitrary.”).
`There is precedent in this District for imposition of reasonable time limits in criminal
`trials. In United States v. San Diego Gas & Electric, 06-CR-0065-DMS, four defendants
`(an entity and three individuals) were charged with various felony violations arising from
`allegedly improper asbestos removal. After providing the parties with an opportunity to be
`heard on the issue, Judge Sabraw limited each side (the prosecution and the collective
`defendants) to 40 hours of testimony. The 40 hours included all argument by counsel, as
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`well as examination of witnesses. Judge Sabraw further directed the defense to designate
`one lead counsel for cross examination of each Government witness, while permitting brief
`cross examination by other counsel with respect to their individual client. During trial, the
`court staff maintained a running total of the time used by each side and informed counsel
`at the conclusion of each trial day how much time they had used so that counsel could plan
`accordingly.
`This Court’s Chamber’s Rules already enact a series of trial parameters that “strive[]
`to use the jurors’ time efficiently” by, for example, limiting side bars and mandating that
`only a single lawyer per party may conduct the examination of a witness. Hon. Gonzalo
`P.
`Curiel,
`Criminal
`Pretrial &
`Trial
`Procedures,
`available
`at
`https://www.casd.uscourts.gov/Judges/curiel/docs/Curiel%20Criminal%20Procedures.pdf
`(last accessed Jan. 25, 2021). The Government submits that, given the specific
`circumstances of this case, the Court should consider reasonable time limits similar to those
`imposed by Judge Sabraw in the San Diego Gas & Electric case, including designating a
`single lawyer as lead counsel for cross-examination of each government witness. Such
`limits will further “the goal of preserving the court’s resources . . . while the traditional
`autonomy of counsel to present their case, subject to the exigencies of that goal, is
`preserved. Properly streamlined, the case is more effective for the ascertainment of the
`truth, as mandated by Fed. R. Evid. 611(a).” Reaves, 636 F. Supp. at 1580.
`B. SPEAKING OBJECTIONS AT TRIAL SHOULD BE PRECLUDED
`Trial in this case will involve a large number of witnesses, each of whom likely will
`be examined by multiple lawyers. There doubtless will be objections raised by both sides
`to questions asked of witnesses. It is entirely proper for counsel to raise appropriate
`objections. It is improper, however, for any counsel – whether government or defense – to
`make speaking objections that describe the basis for the objection beyond informing the
`Court of the particular rule of evidence at issue. Mazzeo v. Gibbons, 2010 WL 3020021
`(D. Nev. July 27, 2010).
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`Case 3:18-cr-04683-GPC Document 228 Filed 01/26/21 PageID.2373 Page 6 of 7
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`The Court is capable of determining the admissibility of evidence without a
`prolonged explanation from counsel. A simple: “Objection, relevance” or “Objection,
`foundation” will suffice. Should there be a compelling reason to further explain the
`objection, Counsel should ask the Court for a sidebar conference. In no event should the
`objection be used to coach a witness or influence the jury’s consideration of the evidence.
`An order precluding speaking objections will have the added benefit of streamlining the
`trial.
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`In United States v. Wittig, 2005 WL 758606 (D. Kan. Apr. 4, 2005), the district court
`issued a detailed order regarding the conduct of counsel during trial, including speaking
`objections: Common evidentiary objections should be raised from the floor, except in
`extraordinary circumstances. These common objections include: hearsay, foundation,
`leading, exceeds scope, argumentative, repetitive, Rule 609, and Rule 404(b). Counsel are
`ordered to raise objections by either stating the rule number or rule title. Counsel are
`ordered not to raise speaking objections, nor to make arguments from the floor. Thus, if
`counsel wish to object that a document is hearsay, they shall object by stating, “Objection.
`Hearsay.” Or, they shall object by stating. “Objection. Rule 801.” The objecting counsel
`shall state nothing else. The counsel against whom the objection is lodged shall state by
`rule number or title their response to the objection, if counsel wishes to respond. If counsel
`chooses to respond to “Objection. Hearsay,” an appropriate response would be, for
`example, “business record,” or “Rule 803.” Counsel shall state no other response or
`argument from the floor. Argument or speaking objections in the presence of the jury will
`violate this order. Unless the Court believes that argument would be helpful and requests a
`sidebar, there will be no sidebars on these on these common evidentiary objections. Once
`the Court has ruled on a definitive evidentiary issue, the parties should not continue to raise
`that issue repeatedly. Instead, the Court will consider their objection a continuing objection.
`Id. at *18-19. The Government respectfully submits that an order along similar to that
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`Motions in Limine to Set Reasonable Time Limits and
`Preclude Speaking Objections
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`Case 3:18-cr-04683-GPC Document 228 Filed 01/26/21 PageID.2374 Page 7 of 7
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`imposed in Wittig is appropriate in this case to preclude speaking objections and to allow
`trial to proceed in an orderly and efficient manner.
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`DATED:January 26, 2021
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`Respectfully submitted,
`
`Motions in Limine to Set Reasonable Time Limits and
`Preclude Speaking Objections
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`18cr4683-GPC
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`ROBERT S. BREWER, JR.
`United States Attorney
`
`/s/Melanie K. Pierson
`Assistant United States Attorney
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