Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5352 Page 1 of 15
`
`WIECHERT, MUNK
`& GOLDSTEIN, PC
`David W. Wiechert, SBN 94607
`Jessica C. Munk, SBN 238832
`William J. Migler, SBN 318518
`27136 Paseo Espada, Suite B1123
`San Juan Capistrano, CA 92675
`Telephone: (949) 361-2822
`Email: dwiechert@aol.com
` jessica@wmgattorneys.com
` william@wmgattorneys.com
`
`
`
`
`Attorneys for Jacob Bychak
`
`
`MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKY AND POPEO, P.C.
`Randy K. Jones, SBN 141711
`3580 Carmel Mountain Road, Suite 300
`San Diego, Ca 92130
`Telephone: (858) 314-1510
`Email: rkjones@mintz.com
`
`Daniel J. Goodrich, BBO 692624 (Pro Hac)
`Ryan Dougherty, BBO 703380 (Pro Hac)
`1 Financial Center
`Boston, MA 02111
`Email: djgoodrich@mintz.com
` rtdougherty@mintz.com
`
`
`Attorneys for Mark Manoogian
`
`
`
`BIENERT KATZMAN LITTRELL
`WILLIAMS LLP
`Thomas H. Bienert, Jr., SBN 135311
`James D. Riddet, SBN 39826
`Whitney Z. Bernstein, SBN 304917
`Carlos A. Nevarez, SBN 324407
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`Email: tbienert@bklwlaw.com
` jriddet@bklwlaw.com
` wbernstein@bklwlaw.com
` cnevarez@bklwlaw.com
`
`
`Attorneys for Mohammed Abdul Qayyum
`
`
`BIRD MARELLA BOXER
`WOLPERT NESSIM DROOKS
`LINCENBERG & RHOW, P.C.
`Gary S. Lincenberg, SBN 123058
`Nicole Rodriguez Van Dyk, SBN 261646
`Darren L. Patrick, SBN 310727
`Alexis A. Wiseley, SBN 330100
`1875 Century Park East, Floor 23
`Los Angeles, CA 90067
`Telephone: (310) 201-2100
`Email: glincenberg@birdmarella.com
`nvandyk@birdmarella.com
`fpatrick@birdmarella.com
`awiseley@birdmarella.com
`
`Attorneys for Petr Pacas
`
`
`
`
`
`
`
`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
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`
`18-cr-04683-GPC
`DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO: (1) SET REASONABLE TIME
`LIMITS; AND (2) PRECLUDE SPEAKING OBJECTIONS
`
`

`

`Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5353 Page 2 of 15
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`Plaintiff,
`
`UNITED STATES OF AMERICA,
`
`
`
`v.
`
`JACOB BYCHAK et al.,
`
`
`
`Defendants
`
`Case No. 3:18-cr-04683-GPC
`Hon. Gonzalo P. Curiel
`
`DEFENDANTS’ OPPOSITION TO
`GOVERNMENT’S MOTION IN LIMINE
`TO: (1) SET REASONABLE TIME
`LIMITS; AND (2) PRECLUDE SPEAKING
`OBJECTIONS [DKT. 228]
`
`Date: April 7, 2022
`Time: 1:00 p.m.
`Dept.: 2D
`
`
`
`
`
`
`
`
`
`18-cr-04683-GPC
`DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO: (1) SET REASONABLE TIME
`LIMITS; AND (2) PRECLUDE SPEAKING OBJECTIONS
`
`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
`
`26
`
`27
`
`28
`
`

`

`Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5354 Page 3 of 15
`
`
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`
`I.
`
`INTRODUCTION.
`
`The government’s motion in limine seeking an order setting time limits for trial,
`
`designating a single lawyer on the defense side as lead counsel for cross-examination of
`
`each government witness, and precluding speaking objections (“Motion”) is without merit.
`
`See Dkt. 228. At its essence, the Motion suggests that the Court is incapable of managing
`
`its courtroom and the pace of the upcoming trial and needs to impose strict guidelines
`
`because of the government’s unfounded speculation that there is a “risk” that the trial will
`
`take longer than the government wants for the parties to defend their case. Although it
`
`suggests the imposition of trial hour limits, the Motion does not propose any numbers but
`
`instead suggests the government should have free rein and Defendants should be limited.
`
`Defendants have a constitutional right to defend themselves against the government’s
`
`indictment from a conviction, loss of liberty, and collateral consequences of deportation.
`
`That right is absolute, and should not be infringed upon, especially without any basis for
`
`doing so. As noted by the government’s own cited authority, “a district court should impose
`
`time limits only when necessary.” United States v. Hildebrand, 928 F. Supp. 841, 848
`
`(N.D. Iowa 1996) (citation omitted) (emphasis added). Here, the government has wholly
`
`failed to explain why such limits are necessary and, instead, cites to inapplicable authority
`
`in support of its position. The Court knows how to handle its courtroom and encourage the
`
`parties to streamline their respective cases. The order requested by the government,
`
`therefore, is unwarranted and the Court should permit both sides to try the case.
`
`Separately, the government’s request for an order precluding speaking objections is
`
`unnecessary in light of the Court’s own rule prohibiting such objections unless the Court
`
`requests further information from counsel.1 Like with its other arguments, the government
`
`
`1 See Hon. Gonzalo P. Curiel, Criminal Pretrial & Trial Procedures at p. 3 (emphasis
`added),
`https://www.casd.uscourts.gov/Judges/curiel/docs/Curiel%20Criminal%20Chambers%20
`Rules.pdf (last accessed March 28, 2022) (“Chambers Rules”).
`
`
`1
`
`3:18-cr-04683-GPC
`DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO: (1) SET REASONABLE TIME
`LIMITS; AND (2) PRECLUDE SPEAKING OBJECTIONS
`
`
`
`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
`
`26
`
`27
`
`28
`
`

`

`Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5355 Page 4 of 15
`
`
`
`cites irrelevant and inapt authority to support its claim that the Court cannot run the trial
`
`and instead must issue an order on speaking objections.
`
`In sum, the government fails to provide any cogent reason to justify the order
`
`requested in the Motion. Accordingly, the Court should deny Motion in its entirety.
`
`II. THE GOVERNMENT’S REQUEST FOR TIME LIMITS AT TRIAL IS
`
`UNFOUNDED.
`
`Courts generally look upon rigid hour limits for trials with disfavor. See General
`
`Signal Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1508 (9th Cir. 1995), citing
`
`Monotype Corp. PLC v. Int’l Typeface Corp., 43 F.3d 443, 450–51 (9th Cir. 1994) and
`
`Flaminio v. Honda Motor Co., 733 F.2d 463, 473 (7th Cir. 1984); Amarel v. Connell, 102
`
`F.3d 1494, 1513 (9th Cir. 1996).
`
`While trial courts have discretion to expedite the completion of trials, “they must not
`
`adhere so rigidly to time limits as to sacrifice justice in the name of efficiency.” General
`
`Signal Corp., 66 F.3d at 1509; see also Sims v. ANR Freight Sys., Inc., 77 F.3d 846, 849
`
`(5th Cir. 1996) (recognizing that a trial court’s discretion to set “time limit on counsel”
`
`itself “has its limits,” as it is essential for “parties through their lawyers to present
`
`information in a manner that is comprehensible to a judge or jury” and “[w]hen the manner
`
`of the presentation of information to a jury is judicially restricted to the extent that the
`
`information becomes incomprehensible then the essence of the trial itself has been
`
`destroyed”); United States v. Kubini, 304 F.R.D. 208, 216 (W.D. Pa. 2015) (district court
`
`determined that it would not impose time limits at trial, even though the case involved “four
`
`defendants with very different roles in the alleged fraud”).
`
`The government’s position is that the instant case is complicated – necessitating the
`
`imposition of time limits – as there is a “significant risk” that the trial will “devour far more
`
`time than is necessary for each party to fairly and effectively present its case to the jury.”
`
`See Motion at 2. But it is clear that the Court can adequately control the pace of trial and
`
`abide by the dictates of the Federal Rules of Evidence. See, e.g., Fed. R. Evid. 611(a)
`
`
`
`
`
`
`2
`
`3:18-cr-04683-GPC
`DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO: (1) SET REASONABLE TIME
`LIMITS; AND (2) PRECLUDE SPEAKING OBJECTIONS
`
`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
`
`26
`
`27
`
`28
`
`

`

`Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5356 Page 5 of 15
`
`
`
`(commanding the Court to “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”); see also United States v. Vest, 116 F.3d 1179, 1187 (7th Cir.
`
`1997) (“time limits are no substitute for involved trial judges who must always shepherd
`
`trials along, curtailing repetitive, irrelevant, and immaterial questioning”).
`
`The government also fails to identify the number of hours each side should be limited
`
`to and implies that it should be provided with the time it requests while imposing a unilateral
`
`limitation of the Defendants’ hours at trial. See Motion at 1-5. The government’s position
`
`is fundamentally unjust and fails to appreciate that defense preparations are fluid since they
`
`depend largely on what witnesses and evidence the government chooses to present.
`
`Moreover, it is not only unsupported by its cited authority, but contrary to case law in this
`
`District. See, e.g., United States v. W. Titanium, Inc., No. 08-CR-4229-JLS, 2010 WL
`
`3988291, at *7 (S.D. Cal. Oct. 12, 2010) (denying the government’s “motion to set time
`
`limits” because “the Court cannot, and does not, have a realistic understanding of what the
`
`proof will be and how much time would be adequate for either side to present its case”).
`
`The government’s quotation of Hildebrand deliberately leaves out the key preface to
`
`the court’s pronouncement: “a district court should impose time limits only when
`
`necessary, after making an informed analysis based on a review of the parties’ proposed
`
`witness lists and proffered testimony, as well as their estimates of trial time.” See
`
`Hildebrand, 928 F. Supp. at 848, citing Duquesne Light Co. v. Westinghouse Elec. Corp.,
`
`66 F.3d 604, 610 (3d Cir. 1995) (italics in original, but bolding added); Motion at 4 (quoting
`
`Hildebrand but omitting the bolded language). Hildebrand is also distinguishable since it
`involved a fifty-nine page, forty-four count indictment charging eleven defendants with
`
`various federal offenses – a far cry from the seven-page, ten-count Indictment charging four
`
`defendants in this matter – and the Hildebrand court did not impose any trial limits but
`
`stated that it “may promulgate a Trial Management Order” specifying time limits following
`
`
`
`
`
`
`3
`
`3:18-cr-04683-GPC
`DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO: (1) SET REASONABLE TIME
`LIMITS; AND (2) PRECLUDE SPEAKING OBJECTIONS
`
`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
`
`26
`
`27
`
`28
`
`

`

`Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5357 Page 6 of 15
`
`
`
`the review of certain in camera submissions by both sides. See Hildebrand, 928 F. Supp.
`
`at 843, 851 (emphasis added). The government has failed to explain or show why such
`
`extreme measures are warranted here.
`
`Further, Zivkovic v. S. California Edison Co., 302 F.3d 1080 (9th Cir. 2002) is
`
`inapplicable. See Motion at 2. In that case, the Ninth Circuit held that a district court did
`
`not abuse its discretion in imposing a one-day time limit for a civil bench trial that focused
`
`on two discrete employment discrimination issues: (1) whether the plaintiff was offered and
`
`provided a reasonable accommodation; and (2) whether the defendant failed to hire the
`
`plaintiff due to his disability. See id. at 1088. Among other things, the Ninth Circuit noted
`
`that the district court “continued the trial to a second day and gave each party an additional
`
`twenty minutes for closing arguments” and the plaintiff failed to indicate “what additional
`
`evidence he would have offered on those two issues if provided more time.” Id.2
`
`Likewise, the government’s reliance on United States v. Cousar, No. CRIM.A. 06-
`
`007, 2007 WL 4456798 (W.D. Pa. Dec. 16, 2007) is misplaced. See Motion at 2-3. In that
`
`trial management order, the district court established time limits in a complex construction
`
`fraud case involving a fifty-three-page indictment and thirty-nine criminal charges alleging
`
`fraud during three separate construction projects – again, much different from the seven-
`
`page, ten-count Indictment here. Moreover, the Coursar court established trial time limits
`
`after determining that the proffered testimony of the government’s witnesses was
`
`“cumulative” and there was “substantial overlap of the [government witnesses’] testimony
`
`related to the common schemes in this case,” rather than a concern about the defense’s
`cumulative testimony. See id. at *1, *3.3 In any event, even though the district court in
`
`
`2 Geders v. United States, 425 U.S. 80 (1976) is similarly inapt. See Motion at 3. Geders
`had nothing to do with the imposition of time limits on trial, but rather whether “an order
`preventing [the defendant in a federal criminal prosecution] from consulting his counsel
`‘about anything’ during a 17-hour overnight recess between his direct-and cross-
`examination impinged upon his right to the assistance of counsel.” Geders, 425 U.S. at 91.
`3 The anticipation of the government’s presentation of cumulative evidence is what also
`distinguishes this case from United States v. Reaves, 636 F. Supp. 1575 (E.D. Ky. 1986),
`
`
`4
`
`3:18-cr-04683-GPC
`DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO: (1) SET REASONABLE TIME
`LIMITS; AND (2) PRECLUDE SPEAKING OBJECTIONS
`
`
`
`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
`
`26
`
`27
`
`28
`
`

`

`Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5358 Page 7 of 15
`
`
`
`Cousar initially limited each side’s presentation, that order was vacated, the Cousar court
`
`later “granted the parties additional time,” and “[e]ach of the defendants [in Cousar] then
`
`pled guilty to certain charges so it is unclear how those case management techniques would
`
`have fared.” See Kubini, 304 F.R.D. at 216-18.
`
`In addition, the government cites General Signal Corp. for the proposition that “it is
`
`not an abuse of discretion for the court to enforce time limits.” See Motion at 3, citing
`
`General Signal Corp., 66 F.3d at 1509. But that case bears no resemblance to the one at
`
`bar because the parties in that civil matter had “agreed in the joint pretrial statement that 14
`
`days (56 hours) would be sufficient for the trial.” See 66 F.3d at 1508. And the Ninth
`
`Circuit determined that the district court was sufficiently flexible in enforcing its 14-day
`
`limit where the complaining party “was primarily responsible for its inability to present its
`
`case within the time limits” by using the vast majority of its time during its case in chief
`
`“introducing duplicative evidence and taking a leisurely approach to its presentation,” failed
`
`to “heed at least five specific warnings by the district court to save sufficient time for cross-
`
`examination,” and filed a response to a motion that stated, among other things: “We have
`
`found that your time limits have assisted us in presenting a better and more efficient case ...
`
`[W]e do not believe either party should be given additional hours.” Id. at 1509.
`
`
`cited on page 4 of the Motion. In that 36-year old opinion, the Kentucky court overseeing
`a criminal tax fraud case rejected challenges to its authority to impose time limits at trial
`where the government “intended to introduce numerous tax returns of various individuals
`and partnerships page by page, making little effort to organize the voluminous evidence
`into a meaningful pattern or streamline the presentation of the case by the use of charts or
`summary exhibits,” and imposed trial time limits because the “prosecutorial penchant to
`regard the omission of any job or title of possible evidence with the same horror as Scrooge
`regarded the expenditure of a shilling” “convinced [the court that] an excessive amount of
`its time was about to be consumed by a wasteful, duplicative, and inefficient method of
`introducing evidence.” See Reaves, 636 F. Supp. at 1576-77 (emphasis added). The
`government has wholly failed to demonstrate that Defendants will proceed in a remotely
`similar manner here, and it should have to make such a showing before this Court condones
`infringing on Defendants’ constitutional rights to present a defense.
`
`
`5
`
`3:18-cr-04683-GPC
`DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO: (1) SET REASONABLE TIME
`LIMITS; AND (2) PRECLUDE SPEAKING OBJECTIONS
`
`
`
`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
`
`26
`
`27
`
`28
`
`

`

`Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5359 Page 8 of 15
`
`
`
`United States v. Ackerly, No. CR 16-10233-RGS, 2018 WL 443449 (D. Mass. Jan.
`
`16, 2018) also fails to support the government’s request to impose time limits on
`
`Defendants. See Motion at 3. Ackerly is merely a Massachusetts district court’s order on
`
`the government’s motion for reconsideration “of the court’s order concerning trial limits”
`
`that contains broad pronouncements like those cited in the Motion but fails to set forth any
`
`facts that could shed light on what guided that court to its decision. And the court in Ackerly
`
`observed that a court’s discretion in imposing time limits “must be guided by an assessment
`
`of the complexity of the case to ensure that the parties can ‘present[ ] sufficient evidence
`
`on which to base a reliable judgment” and in the criminal context, “a court must respect a
`
`defendant’s right to testify in his own defense and his right to confront the witnesses against
`
`him.” Ackerly, 2018 WL 443449, at *1 (citations omitted). Thus, if anything, the principles
`
`elucidated in Ackerly favor the defense’s position that the Court should not countenance the
`
`government’s request to limit Defendants and give the government free rein.
`
`The government also cites to three cases to support the claim that it is proper to limit
`
`a defendant’s direct testimony “where further testimony would be cumulative.” Motion at
`
`3. Not only does the government fail to offer any rationale for the imposition of time limits
`
`on the Defendants’ direct testimonies here, but the cases are also easily distinguishable.
`
`United States v. Scott, 789 F.2d 795 (9th Cir. 1986) involved a defendant charged with six
`
`counts of unauthorized sale of government property who claimed that the trial court’s
`
`imposition of a time limit on his testimony denied him a fair trial because he could not give
`
`a “thorough presentation of the armory improvements” and his defense centered on his
`
`belief that he was authorized to sell the property at issue as evidenced by his use of the
`
`proceeds “to clean up an armory and put it in a condition to pass inspection. See id. at 796-
`
`97, 799. The Ninth Circuit rejected this argument, finding that the record established that
`
`“the jury received a full picture of the improvements” and “[a]ny further testimony would
`
`have been cumulative.” See id. at 799. Unlike the situation in Scott, the government has
`
`
`
`
`
`
`6
`
`3:18-cr-04683-GPC
`DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO: (1) SET REASONABLE TIME
`LIMITS; AND (2) PRECLUDE SPEAKING OBJECTIONS
`
`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
`
`26
`
`27
`
`28
`
`

`

`Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5360 Page 9 of 15
`
`
`
`not – and cannot – show at this time that any testimony proffered by the Defendants would
`
`be cumulative.
`
`The other cases cited by the government are similarly unsupportive of its position.
`
`In United States v. Hay, 122 F.3d 1233, 1237 (9th Cir. 1997), the Ninth Circuit held that
`
`any error in putting a time limit on the defendant’s direct testimony was harmless where the
`
`defendant failed to identify any evidence that he was prevented from presenting or show
`
`that the time limit weakened his case and, in fact, conceded that he was able to testify on
`
`redirect about the testimony that he had wanted to give on direct. And in United States v.
`
`Tilley, 326 F. App’x 96, *1 (3d Cir. 2009), an unpublished opinion in which the Third
`
`Circuit rejected the defendant’s claim that the district court had violated his Sixth
`
`Amendment rights by setting a time limit for his testimony, the Court found that the
`
`defendant’s argument was “simply not supported by the record,” which showed that the
`
`district court permitted the defendant to testify after the conclusion of evidence “and after
`
`[the defendant] himself, acting pro se, had stated on the record that the defense rested,” the
`
`defendant “testified at length before finally saying, ‘I'm done,’” and the court “then made
`
`certain that [the defendant] had no more testimony to offer before excusing him as a
`
`witness.” See id. at *1.
`
`Lastly, the government references the case of United States v. San Diego Gas &
`
`Electric, 06-CR-0065-DMS, for the argument that “[t]here is precedent in this District for
`
`imposition of reasonable time limits in criminal trials.” Motion at 4-5. But the government
`
`fails to provide any citations, docket references, or any other evidence relating to this 16
`
`year-old case to support its claim that Judge Sabraw allegedly issued orders limiting each
`
`side to 40 hours of testimony and ordering the defense to designate one lead counsel for
`
`cross-examination of each government witness. Nor could defense counsel identify any
`
`
`
`
`
`
`7
`
`3:18-cr-04683-GPC
`DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO: (1) SET REASONABLE TIME
`LIMITS; AND (2) PRECLUDE SPEAKING OBJECTIONS
`
`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
`
`26
`
`27
`
`28
`
`

`

`Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5361 Page 10 of 15
`
`
`
`such filings from the docket.4 The only relevant document on the case docket is the
`
`Defendants’ Joint Estimate of Length of Trial, which reflects that the defense was
`
`“agreeable to assigning lead counsel for direct and cross-examination (reserving of course
`
`the rights of respective Defendants to undertake whatever additional non-duplicative
`
`examination is constitutionally appropriate).” See attached Exhibit A. Here, Defense
`
`counsel reached no such agreement with the government. As such, none of these cases
`
`explain why an order “designating a single lawyer as lead counsel for cross-examination of
`
`each government witness” is necessary under the “specific circumstances of this case.” See
`
`Motion at 5.
`
`For all of these reasons, the Court should deny the government’s request for an order
`
`setting trial time limits and designating a single lawyer on the defense side as lead counsel
`
`for cross-examination of each government witness.
`
`III. AN ORDER PRECLUDING SPEAKING OBJECTIONS AT TRIAL IS
`
`UNNECESSARY IN LIGHT OF THE COURT’S CHAMBERS RULES.
`
`The government separately requests an order precluding speaking objections at trial.
`
`See Motion at 5-7. But such an order is unnecessary in light of the Court’s Chambers Rules,
`
`which specifically state:
`
`When objecting, counsel may only state the legal ground for the objection,
`
`e.g., ‘Objection. Hearsay.’ Speaking objections are not permitted, unless
`
`the Court requests further information from counsel.
`
`See Chambers Rules at p. 3 (emphasis added).
`
`In light of the Court’s clear instruction, it is unclear why the government urges the
`
`court to enter a redundant and duplicative order similar to one entered almost 17 years ago
`
`
`4 To the extent the government is relying on rulings embodied in transcripts in the San Diego
`Gas & Electric matter, the defense is hamstrung and unable to verify or rebut the
`government’s claims. The defense has reviewed the docket for the San Diego Gas &
`Electric case and located no such orders, and when they attempted to access the transcripts
`of hearings and the trial in that case, they received notifications that they did not have
`permission to access such documents.
`
`
`
`8
`
`3:18-cr-04683-GPC
`DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO: (1) SET REASONABLE TIME
`LIMITS; AND (2) PRECLUDE SPEAKING OBJECTIONS
`
`
`
`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
`
`26
`
`27
`
`28
`
`

`

`Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5362 Page 11 of 15
`
`
`
`by a Kansas district court judge “to preclude speaking objections and to allow trial to
`
`proceed in an orderly and efficient manner.” See Motion at 6-7, citing United States v.
`
`Wittig, No. 03-40142-JAR, 2005 WL 758606, at *18 (D. Kan. Apr. 4, 2005). This Court’s
`
`recognition that it might request “further information from counsel” as to the basis of the
`
`objection is consistent with the flexibility regarding speaking objections that other courts in
`
`this district have demonstrated. See, e.g., United States v. W. Titanium, Inc., No. 08-CR-
`
`4229-JLS, 2010 WL 3988291, at *8 (S.D. Cal. Oct. 12, 2010) (granting motion to preclude
`
`speaking objections in the presence of the jury but “acknowledg[ing] Defendants’ concern
`
`that some evidentiary objections will require particularized explanations” and stating that
`
`“the Court will remain flexible to provide avenues for the parties to make their positions
`
`clear when the issue is more complicated than that presented by an ordinary objection”).
`
`The Court’s Chambers Rules also stress that during trial, “sidebar conferences are
`discouraged.”5 The government’s argument that “[s]hould there be a compelling reason to
`
`further explain the objection, Counsel should ask the Court for a sidebar conference”
`
`therefore runs counter to the Court’s express directive. Motion at 6.
`
`Finally, the government’ s citation to Mazzeo v. Gibbons, No. 2:08-CV-01387, 2010
`
`WL 3020021 (D. Nev. July 27, 2010) in support of the proposition that “[i]t 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” is unfounded. See Motion at 5. The magistrate judge in Mazzeo merely
`
`issued an order granting an “Emergency Motion to Forbid Attorney Walter Cannon from
`
`Making Improper Objections at Depositions and for Sanctions” “to the extent [counsel for
`
`both parties] are admonished” and sanctioning both the plaintiff’s and defendant’s counsel
`
`for their mutual misconduct during depositions that violated Rule 30 of the Federal Rules
`
`of Civil Procedure. See Mazzeo, 2010 WL 3020021, at *1-2. Nothing in Mazzeo has any
`
`relevance to our criminal matter, the upcoming trial, or the issue of speaking objections.
`
`
`5 See Chambers Rules at p. 3 (emphasis in original).
`
`
`9
`
`3:18-cr-04683-GPC
`DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO: (1) SET REASONABLE TIME
`LIMITS; AND (2) PRECLUDE SPEAKING OBJECTIONS
`
`
`
`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
`
`26
`
`27
`
`28
`
`

`

`Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5363 Page 12 of 15
`
`
`
`IV. CONCLUSION.
`
`
`
`For the foregoing reasons, the Court should deny the government’s motion in limine
`
`requesting an order setting time limits for trial, designating a single lawyer on the defense
`
`side as lead counsel for cross-examination of each government witness, and precluding
`
`speaking objections.
`
`
`Dated: March 31, 2022
`
`Respectfully submitted,
`
`BIENERT KATZMAN LITTRELL
`WILLIAMS LLP
`
`
`
`
`
`
`
`DATED: March 31, 2022
`
`DATED: March 31, 2022
`
`
`
`
`
`
`By: /s/ Whitney Z. Bernstein
`Thomas H. Bienert, Jr.
`James D. Riddet
`Whitney Z. Bernstein
`Carlos A. Nevarez
`Attorneys for Mohammed Abdul Qayyum
`
`MINTZ LEVIN COHN FERRIS
`GLOVSKY AND POPEO, P.C.
`
`By: /s/ Randy K. Jones
`Randy K. Jones
`Daniel J. Goodrich (Pro Hac)
`Ryan Dougherty (Pro Hac)
`Attorneys for Mark Manoogian
`
`
`
`
`
`BIRD, MARELLA, BOXER, WOLPERT,
`NESSIM, DROOKS, LINCENBERT &
`RHOW, P.C.
`
`By: /s/ Gary S. Lincenberg
`Gary S. Lincenberg
`Nicole Rodriguez Van Dyk
`Darren L. Patrick
`Alexis A. Wiseley
`Attorneys for Petr Pacas
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`10
`
`3:18-cr-04683-GPC
`DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO: (1) SET REASONABLE TIME
`LIMITS; AND (2) PRECLUDE SPEAKING OBJECTIONS
`
`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
`
`26
`
`27
`
`28
`
`

`

`Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5364 Page 13 of 15
`
`
`
`DATED: March 31, 2022
`
`WIECHERT, MUNK & GOLDSTEIN, PC
`
`By: /s/ Jessica C. Munk
`David W. Wiechert
`Jessica C. Munk
`William J. Migler
`Attorneys for Jacob Bychak
`
`
`
`
`
`
`
`11
`
`3:18-cr-04683-GPC
`DEFENDANTS’ OPPOSITION TO MOTION IN LIMINE TO: (1) SET REASONABLE TIME
`LIMITS; AND (2) PRECLUDE SPEAKING OBJECTIONS
`
`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
`
`26
`
`27
`
`28
`
`

`

`Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5365 Page 14 of 15
`
`
`
`CERTIFICATION OF AUTHORIZATION TO SIGN SIGNATURE
`
`The undersigned counsel of record for Defendant Abdul Mohammed Qayyum
`
`certifies that the content of this document is acceptable to each of the Defendants’ counsel
`
`whose electronic signature appears thereon, and that I have obtained their authorization to
`
`sign this document on their behalf.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Whitney Z. Bernstein
` Whitney Z. Bernstein
`
`
`
`
`
`
`
`
`1
`
`3:18-cr-04683-GPC
`CERTIFICATION OF AUTHORIZATION TO SIGN SIGNATURE
`
`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
`
`26
`
`27
`
`28
`
`

`

`Case 3:18-cr-04683-GPC Document 371 Filed 03/31/22 PageID.5366 Page 15 of 15
`
`CERTIFICATE OF SERVICE
`Counsel for Defendant Mohammed Abdul Qayyum certifies that the foregoing
`pleading has been electronically served on the following parties by virtue of their
`
`registration with the CM/ECF system:
`
`Counsel for Defendant certifies that the foregoing pleading has been electronically served
`
`on the following parties by virtue of their registration with the CM/ECF system:
`
`AUSA Melanie K. Pierson
`AUSA Sabrina L. Fève
`AUSA Ashley E. Goff
`U.S. Attorney’s Office
`880 Front Street, Rm 6293
`San Diego, CA 92101
`melanie.pierson@usdoj.gov
`sabrina.feve@usdoj.gov
`ashley.goff@usdoj.gov
`
`Candina S. Heath
`Department of Justice
`1301 New York Avenue NW, Suite 600
`Washington, DC 20530
`candina.heath2@usdoj.gov
`
`I certify under penalty of perjury under the laws of the United States of America that
`
`the foregoing is true and correct, and that I executed this declaration on March 31, 2022, at
`
`San Clemente, California.
`
`/s/ Whitney Z. Bernstein
` Whitney Z. Bernstein
`
`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
`
`26
`
`27
`
`28
`
`1
`CERTIFICATE OF SERVICE
`
`3:18-cr-04683-GPC
`
`