Title: CV 09-414-GW(PJWx) Alice Smithen v. United States of America, et al.

Present: The Honorable Javier Gonzalez Pat Cuneo/Nichole Forrest Deputy Clerk Court Reporter/Recorder Attorneys Present for Plaintiff(s): Michael J. Grobaty; Robert K. Peck Attorneys Present for Defendants: Ernest Cordero, Jr., AUSA; David Wallace, AUSA Day Court Trial 2nd Begun (1st day); U Held & Continued; One day trial: The Jury is impaneled and sworn.

Opening statements made by U Witnesses called, sworn and testified.

Clerk reviewed admitted exhibits with counsel to be submitted to the Jury/Court for deliberation/findings.

Counsel stipulate to the return of exhibits upon the conclusion of trial.

“In determining whether the employee was acting within the scope of the employment, factors to be considered include the intent of the employee, the nature, time and place of his or her conduct, the employee’s actual or implied authority, the work the employee was hired to do, the incidental acts the employer reasonably should have expected would be done, and the amount of freedom allowed the employee in performing his or her duties.” Miller v. Stouffer, 9 Cal.App.4th 70, 458 (1992) (citation omitted) (emphasis added); Kephart v. Genuity, Inc., 136 Cal.App.4th 280, 290 (2006) (“[T]he nature of an employee’s conduct and his or her purpose and intent in so acting are important considerations in determining whether he or she acted in the course and scope of employment.”) (emphasis added).

Based on the foregoing, the Court should consider Itkowitz’s subjective intent when assessing whether his acts fell within the course and scope of his employment.

As part of this analysis, the Court must distinguish between acts Itkowitz took within the course and scope of employment versus those he may have taken under color of law.

Whether an action is performed in the scope of employment does not entail the same inquiry as whether the act was under color of law.

Rather, “[t]he ‘under color of law’ category is broader than the ‘scope of Defendant’s Brief Re: Intent Issues CV-09-414-GW (PJWx) employment’ category.’” Graham v. Sauk Prairie Police Com’n, 915 F.2d 1085, 1093 (7th Cir. 1990).

Plaintiff Alice Smithen (“Smithen”) submits this response to the United States of America’s Brief Re Admissibility of Caroline Cardenas Statement to Police.

The United States of America (“USA”) seeks to admit as evidence statements Caroline Cardenas gave to the Los Angeles Police Department (“LAPD”) on March 6, 2008.

Under Rule 807, a hearsay statement that does not fall within an enumerated exception may be admitted if: (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice.

Grobaty Pitet LLP When a party seeks to admit evidence under Rule 807, it bears a heavy burden to provide indicia of both trustworthiness and probative force.

Far from confirming her statement to the LAPD, at the time of her grand jury testimony Cardenas could not tell where the gun was pointed or who produced it.

Title: CV 09-414-GW(PJWx) Alice Smithen v. United States of America, et al.

Present: The Honorable Javier Gonzalez Deputy Clerk Katie Thibodeaux Court Reporter/Recorder Attorneys Present for Plaintiff(s): Michael J. Grobaty; Robert K. Peck Attorneys Present for Defendants: Ernest Cordero, Jr., AUSA; David Wallace, AUSA Day Court Trial 1st Begun (1st day); U Held & Continued; One day trial: The Jury is impaneled and sworn.

Opening statements made by U Witnesses called, sworn and testified.

Clerk reviewed admitted exhibits with counsel to be submitted to the Jury/Court for deliberation/findings.

Counsel stipulate to the return of exhibits upon the conclusion of trial.

And the Court points to the fact that none of the witnesses are direct -- is certainly not the issue of the defendant's purpose.

In February 2011, the USA obtained an indictment against Matthew Itkowitz (“Itkowitz”) for, among other things, depriving Ryan Gonzalez (“Gonzalez”) of his right to be free from the unreasonable use of force by a law enforcement officer in violation of 18 U.S.C. 242.

She made statements such as:  “Defendant Matthew Itkowitz, an off duty United States Marshal, shot Ryan Gonzalez five times and killed in violation of his civil rights.

Grobaty Pitet LLP officer to create the opportunity to kill Gonzalez.” The USA is free to try to explain away the fact that it has done a complete 180 with respect to the controverted issues in this case.

Moreover, a substantial portion of the record of the Itkowitz criminal trial will be moved into evidence in this action regardless of the admission of the USA’s opening statement and closing argument.

Smithen and the USA have already agreed upon the admissibility of the trial testimony of Anthony Kim Ross, Juan Carrillo, Michael Peerson, Ismael Aldaz, Oscar Zamora, Jess McKay, Scott Murray, Victor Carrasco, and Vanessa Gould.

801(d)(2)(D) ANALYSIS Grobaty Pitet LLP Plaintiff Alice Smithen (“Smithen”) respectfully submits this trial brief regarding whether the Court can review the transcript of the Los Angeles Police Department’s interview of Matthew Itkowitz (Trial Exhibit 64) in determining its admissibility under Federal Rule of Evidence 801(d)(2)(D).

Smithen intends to introduce as evidence the transcript of the Los Angeles Police Department’s interview of Matthew Itkowitz (“Itkowitz”).

As set forth below, Rule 801(d)(2) makes clear that the Court is required to review the interview transcript in determining its admissibility.

801(d)(2)(D) ANALYSIS Grobaty Pitet LLP an otherwise excludible statement relates to a matter within the scope of the agent’s employment.’” Sims v. Lakeside School, No. C06-1412RSM, 2007 WL 4219347, at *2 (W.D.

The authorities set forth above require the Court to review the interview transcript in determining its admissibility under Rule 801(d)(2)(D).

The United States of America (“USA”) criminally prosecuted Matthew Itkowitz (“Itkowitz”) for depriving Ryan Gonzalez (“Gonzalez”) of his rights under the color of law in violation of 18 U.S.C. § 242.

Judge Gutierrez found that the USA had not presented sufficient evidence for the jury to find beyond a reasonable doubt that Itkowitz acted under the color of law when he killed Gonzalez.

Specifically, Judge Gutierrez found that the USA failed to demonstrate that Itkowitz acted in the pretense of his official duties with the purpose and effect or influencing Gonzalez’s behavior.

Judge Gutierrez found that the USA failed to put forth sufficient evidence for the jury to find beyond a reasonable doubt that Itkowitz acted under the color of law when he killed Gonzalez.

Menghi brought an action against Hart and the County of Suffolk (respondeat superior liability) for violations of 42 U.S.C. § 1983 and the Drivers’ Privacy Protection Act (“DPAA”), 18 U.S.C. § 2721, et seq.

Case No. CV 09-414-GW(PJWx) Alice Smithen v. United States of America, et al.

Title Date February 23, 2017 Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE Javier Gonzalez Nichole Forrest Tape No. Deputy Clerk Court Reporter / Recorder Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Michael J. Grobaty Dave Wallace, AUSA Ernest Cordero, Jr., AUSA

Court and counsel confer re pretrial issues.

Court issues its rulings on objections.

Bench Trial remains set for February 27 at 1:00 p.m.

In his personal injury action, Inouye alleged that Parker was acting as a peace officer at the time of the shooting and sought damages from the County under the doctrine of respondeat superior.

When Gonzalez turned and walked away, he should have let him go.” [TE 5—Ross Trial Test., p. 70]  “Whether Mr. Itkowitz would choose to do that, whether he would go the other way, create more space, use the dumpster as a position of advantage to have some barrier between himself and the subject—those are all things we teach them as far as their tactics, how to use their tools, how to make themselves safe.

To avoid civil liability for Itkowitz’s actions, the USA tries to run from all the admissions and conclusions it made in connection with its investigation of the incident which led to the criminal prosecution of Itkowitz.

If the finding of this jury is not “collateral estoppel” vis-à-vis the issue of “scope of employment,” it would be difficult to imagine more persuasive evidence that everyone, including the USA, believed that Itkowitz was acting in his capacity as a law enforcement officer when he shot and killed Gonzalez.

The USA contends that because Itkowitz had consumed some alcohol on the night of the shooting and initially was involved in a private dispute with Gonzalez, that these facts somehow shield the Defendant from respondeat superior liability.

As the two walked further into the alley, Gonzalez pointed a gun at Itkowitz’s head “gangster style.” Although Gonzalez had a history of gang affiliations and felony convictions at the time of the incident, he nonetheless possessed the ...

Itkowitz did none of this as, according to his own testimony, he was not attempting to apprehend Gonzalez.