Case5:08-cr-00938-JW Document105 TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE JAMES

Case5:08-cr-00938-JW Document105 Filed06/29/10 Page1 of 49
1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE NORTHERN DISTRICT OF CALIFORNIA
3 SAN JOSE DIVISION
4
UNITED STATES OF AMERICA, ) CR-08-00938-JW
5 )
PLAINTIFF, ) SAN JOSE, CALIFORNIA
6 )
VS. ) JUNE 21, 2010
7 )
PANTAGES, ET AL, ) PAGES 1-49
8 )
DEFENDANT. )
9 )
10
11 TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JAMES WARE
12 UNITED STATES DISTRICT JUDGE
13
14 A P P E A R A N C E S:
15
16 FOR THE PLAINTIFF: UNITED STATES ATTORNEY'S OFFICE

UNITED STATES BY: GRANT FONDO
17 RICHARD CHENG
150 ALMADEN BLVD., STE 900
18 SAN JOSE, CA 95113
19
20 FOR THE DEFENDANT: ATTORNEY AT LAW

BY: VICTOR VERTNER
21 5267 ELROSE AVENUE
SAN JOSE, CA 95124
22
23
24
25 OFFICIAL COURT REPORTER: SUMMER FISHER, CSR, CRR

CERTIFICATE NUMBER 13185
1
1 SAN JOSE, CALIFORNIA JUNE 21, 2010
2 P R O C E E D I N G S
3 (WHEREUPON, COURT CONVENED AND THE
4 FOLLOWING PROCEEDINGS WERE HELD:)
5 THE CLERK: CALLING CASE NUMBER 08-00938.
6 UNITED STATES V. JAMIE HARMON.
7 MR. FONDO: GOOD AFTERNOON, YOUR HONOR.
8 GRANT FONDO FOR THE UNITED STATES.
9 MR. CHENG: ALONG WITH RICHARD CHENG.
10 MR. VERTNER: VICTOR VERTNER APPEARING
11 FOR AND WITH MS. HARMON; SHE IS PRESENT.
12 THE COURT: GOOD AFTERNOON.
13 WE ARE HERE NOW IN THIS CASE ON A FINAL
14 PRETRIAL CONFERENCE. I HAVE A SERIES OF MOTIONS IN
15 LIMINE THAT I TOOK A PRELIMINARY LOOK AT AND MAYBE
16 I COULD GET A LITTLE BIT OF EDUCATION ABOUT THOSE.
17 I ACTUALLY DON'T SEE MY LIST FILED, I
18 THOUGHT I HAD IT IN THE OTHER EVENT. THE OTHER
19 ISSUE I WANTED TO RAISE WITH YOU ALL HAS TO DO WITH
20 OUR SCHEDULE. WE ARE SET TO START THIS TRIAL NOW
21 ON JULY 7TH, THE JURY SELECTION. AT THE TIME I
22 PICKED THAT DATE, I HAD CONFLICTING MATTERS. THERE
23 WAS ANOTHER CASE THAT WAS ESTIMATED TO TAKE THREE
24 TIMES AS LONG AS IT ACTUALLY TOOK.
25 SO I NOW HAVE A PERIOD OF TIME AVAILABLE
2
1 TO ME, AND I ACTUALLY DON'T SEE THE ADDITIONAL
2 CALENDAR THAT I THOUGHT WAS IN THIS FILE SHOWING ME
3 THE EXTRA DATES BUT LET ME LOOK IN ONE OTHER PLACE
4 HERE.
5 PRESENTLY I HAVE AVAILABLE THE WEEK OF
6 THE -- STARTING TUESDAY THE 29TH. SO IF YOU WERE
7 AVAILABLE TO ME AND COULD START TRIAL WE COULD
8 ACTUALLY SUMMON A JURY AND PICK A JURY THE 29TH.
9 WE WOULD TAKE A HIATUS FOR THE HOLIDAY IN
10 CASE WE HAD JURORS WHO WERE TRAVELLING FRIDAY THE
11 2ND AND WOULD RETURN, BUT THAT WOULD GIVE YOU A
12 WEEK OF TIME THAT OTHERWISE WAS UNAVAILABLE IF YOU
13 CAN TAKE ADVANTAGE OF THAT; THAT'S ONE OF THE
14 QUESTIONS.
15 IN ANY EVENT, I WOULD ALSO ASK YOU TO
16 LOOK AT YOUR CALENDARS TO SEE IF YOU COULD USE
17 TUESDAY JULY 6TH. THE CONFLICTS THAT I HAD ARE
18 GONE AWAY SO WE COULD MOVE YOU UP ONE DAY SO THAT
19 INSTEAD OF TRYING THE CASE WEDNESDAY, THURSDAY,
20 FRIDAY OF THAT WEEK, WE COULD TRY YOU TUESDAY
21 THROUGH FRIDAY OF THAT WEEK AND AVOID PERHAPS GOING
22 INTO THE WEEK OF THE 19TH.
23 I INVADED A LITTLE BIT OF MY OWN ANNUAL
24 LEAVE FOR THE PURPOSES OF THE TRIAL. I'M STILL
25 CONTENT TO DO THAT IF I CAN'T WORK OUT A DIFFERENT
3
1 SCHEDULE WITH YOU ALL, BUT I WANTED TO SEE WHAT
2 YOUR AVAILABILITIES WERE FOR THAT PERIOD OF TIME.
3 SO HOW ARE YOUR CALENDARS LOOKING?
4 MR. VERTNER: WELL, YOUR HONOR, MY
5 CALENDAR I HAVE MATTERS ON THE 29TH AND THE 30TH
6 AND THE 1ST.
7 THE COURT: SO YOU ARE NOT AVAILABLE TO
8 ME THE 29TH, 30TH OR JULY 1ST?
9 MR. VERTNER: WITHOUT -- NO. WELL, I'M
10 NOT -- I MEAN, I WOULD HAVE TO CANCEL OTHER CASES
11 OR GET OTHER ATTORNEYS TO MAKE OTHER APPEARANCES.
12 I WOULD BE AVAILABLE ON THE 6TH.
13 THE COURT: ALL RIGHT. SO AT LEAST WE
14 COULD START THAT DAY EARLIER BUT NOT THE WEEK
15 BEFORE.
16 WHAT'S THE GOVERNMENT'S CALENDAR?
17 MR. CHENG: IT'S LESS WITH THE ATTORNEYS,
18 MORE WITH OUR WITNESSES.
19 WE HAVE, CERTAINLY, A NUMBER OF PEOPLE
20 ALREADY UNDER SUBPOENA. WE HAVE NOT DISCUSSED WITH
21 THEM A BEGINNING DATE OF THE 6TH. WE IMAGINED
22 ESSENTIALLY BEGINNING SOME TIME POTENTIALLY THE
23 AFTERNOON OF THE 7TH IN TERMS OF TELLING THOSE
24 WITNESSES TO BE AVAILABLE.
25 THE COURT: WELL, THAT MEANS THAT WE
4
1 COULD -- I'M NOT SURE HOW LONG JURY SELECTION WILL
2 TAKE IN THIS CASE, BUT THIS IS A CRIMINAL CASE SO
3 SOMETIMES IT WOULD TAKE US THE BETTER PART OF THE
4 6TH TO GET A JURY. AND WITH OPENING STATEMENTS,
5 AND IF YOUR WITNESSES ARE AVAILABLE TO YOU ON THE
6 7TH, I PRESUME THEY COULD COME IN THE MORNING
7 RATHER THAN THE AFTERNOON. SO LET'S TAKE ADVANTAGE
8 OF AT LEAST THE 6TH.
9 SO WE WILL MOVE JURY SELECTION TO 9:00 ON
10 JULY 6TH, AND THAT AT LEAST WILL GIVE US A LITTLE
11 BIT OF A HEAD START ON THE WHOLE PROCESS.
12 MR. CHENG: SO I'M AWARE YOUR HONOR, YOU
13 ARE NOT HAVING REGULAR CALENDAR ON THE 6TH OF JULY,
14 I TAKE IT?
15 THE COURT: THAT IS THE DATE WE ARE
16 TALKING ABOUT.
17 MR. CHENG: I JUST WANTED TO MAKE SURE
18 YOU ARE NOT MOVING YOUR MONDAYS TO TUESDAY.
19 THE COURT: NO. THAT WOULDN'T BE A
20 NORMAL MONDAY CALENDAR THAT WEEK, ACTUALLY.
21 NOW --
22 MR. VERTNER: YOUR HONOR, THERE ARE --
23 APPARENTLY, I JUST RECEIVED SOME MATTERS FROM THE
24 STATE BAR THAT THE GOVERNMENT HAS RECEIVED. AND
25 ONE OF THE IN LIMINE MOTIONS HAS TO DO WITH SOME OF
5
1 THE MATERIALS I'VE SEEN IN COPIES THAT MS. HARMON
2 HAD, BUT SOME OF THEM I'M NOT SURE WHO AUTHORED
3 THESE OTHER ITEMS.
4 THE COURT: GIVE ME ONE SECOND. I
5 THOUGHT I HAD THAT IN FRONT OF ME.
6 MR. CHENG: I'M SORRY, YOUR HONOR, DID
7 YOU WANT US TO WAIT?
8 THE COURT: I'M WAITING FOR -- I HAD A
9 LIST OF THE VARIOUS IN LIMINE'S WITH SOME NOTES ON
10 THEM THAT I WANTED TO AT LEAST RAISE QUESTIONS
11 ABOUT TO SEE WHAT MORE I NEEDED LEFT TO DO ABOUT
12 THOSE MATTERS. GIVE ME ONE SECOND, I JUST LEFT IT
13 ON MY DESK.
14 MR. CHENG: WHILE WE'RE WAITING I TAKE IT
15 THAT --
16 THE COURT: I FOUND IT. IT GOT PUT INTO
17 THE NIELSON FILE INSTEAD, SO I HAVE IT. LET ME GO
18 BACK TO IT NOW.
19 SO I HAD 1, 2, 4 OR SO LISTED HERE. SOME
20 OF THEM HAD TO DO WITH INTRODUCTION OF EVIDENCE
21 THAT TOOK PLACE BEFORE THE STATE BAR. AND IT
22 SOUNDED LIKE SOMETHING YOU WERE ABOUT TO REFER TO,
23 COUNSEL.
24 MR. VERTNER: RIGHT.
25 THE COURT: THERE ARE ACTUALLY TWO
6
1 MOTIONS THAT WERE DIRECTED TO THAT.
2 MAY I HAVE A PROFFER FROM THE GOVERNMENT
3 WITH RESPECT TO WHAT ITS INTENT IS WITH RESPECT TO
4 THOSE STATE BAR PROCEEDINGS?
5 MR. CHENG: SURE.
6 WE SHOULD -- FOR POINT OF CLARIFICATION,
7 WE SHOULD SEPARATE THE TWO DIFFERENT TYPES OF STATE
8 BAR ACTIONS. ONE STATE BAR ACTION AS RELATED TO
9 MS. HARMON'S PROCEEDINGS AGAINST HER THAT LEAD
10 ULTIMATELY TO EITHER A FINDING OF CULPABILITY AS
11 WELL AS RECOMMENDATIONS FOR HER DISBARMENT AND/OR
12 SUSPENSION.
13 THE OTHER TYPE OF STATE BAR INFORMATION
14 THAT WE NEED TO ALSO TALK ABOUT, I GUESS INVOLVED
15 MR. MACPHERSON, AN ATTORNEY THAT REPRESENTED A
16 PERSON BY NAME OF YAN EBYAM MAKING A COMPLAINT TO
17 THE STATE BAR THAT HAS EVERYTHING TO DO WITH THE
18 CHECKS AS WELL AS THE CONDUCT OF MS. HARMON THAT'S
19 AT ISSUE IN THIS PARTICULAR CASE.
20 WHAT ULTIMATELY HAPPENED THERE WAS A NOTE
21 FILED ESSENTIALLY BY THE STATE BAR AGAINST
22 MS. HARMON FOR THOSE, I GUESS THOSE ALLEGATIONS
23 THAT MR. MACPHERSON RAISED WITH THE STATE BAR.
24 HOWEVER, THAT WAS GENERATED IN RESPONSE
25 TO AN INQUIRY BY THE STATE BAR OF MS. HARMON.
7
1 MS. HARMON'S ATTORNEY AT THE TIME INDICATED HER
2 SIDE OF WHAT SUPPOSEDLY HAPPENED. THAT IS
3 SOMETHING THAT WE BELIEVE WE SHOULD TALK ABOUT AS
4 WELL TODAY.
5 SO LET ME START FIRST WITH THE EASY PART.
6 THOSE ALLEGATIONS THAT WERE LEVIED AGAINST
7 MS. HARMON THAT SHE WENT TO TRIAL ON BEFORE THE
8 STATE BAR THAT LED TO THE ORIGINATIONS OF
9 DISBARMENT AND SUSPENSION, WE DO NOT ANTICIPATE OR
10 WANT TO PARTICIPATE IN THOSE ACTIONS OR THOSE TYPES
11 OF PROCEEDINGS IN FRONT OF THE JURY.
12 WE DO, HOWEVER, BELIEVE THAT IF
13 MS. HARMON TAKES THE STAND IN HER OWN DEFENSE OR IN
14 SOME WAY I GUESS IGNITE THE ISSUE AS TO HER
15 QUALIFICATIONS OR ABILITIES AS A DEFENSE ATTORNEY,
16 THINGS THAT ARE CLEARLY -- THEY ARE EVIDENCE
17 CLEARLY IN OPPOSITE TO THAT. WE NEED TO HAVE THE
18 ABILITY TO FULLY CROSS-EXAMINE MS. HARMON AND ASK
19 HER ABOUT THOSE ISSUES THAT WERE RAISED BY THE
20 STATE BAR.
21 SO ON THE ONE HAND THE EASY ANSWER FOR US
22 IS WE'RE NOT GOING GET INTO THAT IN OUR CASE IN
23 CHIEF, BUT IF SHE TAKES THE STAND WE WANT TO HAVE
24 THE ABILITY TO FULLY CROSS HER ON THAT.
25 THE COURT: SO I'M STILL PERHAPS A LITTLE
8
1 BIT BEHIND YOU ALL IN TERMS OF WHAT THIS IS. THIS
2 WOULD BE IN THE NATURE OF CHARACTER EVIDENCE?
3 MR. CHENG: WELL, THERE'S CERTAINLY
4 PEOPLE THAT TESTIFIED ON MS. HARMON'S BEHALF THAT
5 WERE CHARACTER WITNESSES. WE DON'T KNOW WHAT THE
6 CHARACTER WITNESSES ARE GOING TO SAY IN THESE
7 PARTICULAR PROCEEDING OR WHETHER SHE EVEN HAS ANY
8 CHARACTER WITNESSES.
9 CERTAINLY, HOWEVER, IF SHE TAKES THE
10 STAND, FOR CHARACTER WITNESSES TO TAKE THE STAND ON
11 MS. HARMON'S BEHALF, WE NEED TO HAVE THE ABILITY TO
12 CROSS-EXAMINE THOSE INDIVIDUALS ON THOSE
13 ALLEGATIONS, AND MORE PARTICULARLY, THE FINAL
14 FINDINGS THAT WERE HAD BY THE STATE BAR.
15 THAT GOES TO HER TRUTH AND VORACITY, FOR
16 INSTANCE HER PROFESSIONALISM, HER ABILITY TO MAKE
17 PROMISES AND APPARENTLY NOT DO AS PROMISED AND TAKE
18 MONEY FROM PEOPLE THAT WERE HER CLIENTS.
19 THESE ARE CERTAINLY THINGS THAT WILL
20 BECOME AN ISSUE WHEN CHARACTER WITNESSES TAKE THE
21 STAND ON HER BEHALF OR WHEN MS. HARMON TAKES THE
22 STAND ON HER OWN BEHALF.
23 THE COURT: WELL, CERTAINLY CREDIBILITY
24 CAN BE ATTACKED AND THERE ARE WAYS TO USE CHARACTER
25 EVIDENCE TO ATTACK IT AND THERE ARE WELL WORN RULES
9
1 OF EVIDENCE HAVING TO DO WITH HOW CHARACTER AND
2 FORM OF REPUTATION AND THOSE THINGS CAN BE THE
3 SUBJECT OF EXAMINATION IF CHARACTERS ARE PLACED IN
4 EVIDENCE BY THE DEFENSE, INCLUDING SPECIFIC ACTS.
5 SO ORDINARILY I WOULDN'T OCCUPY MYSELF
6 IN AN IN LIMINE MOTIONS PROCEEDING TO DEAL WITH
7 THOSE MATTERS BECAUSE THERE IS A SET OF RULES
8 HAVING TO DO WITH THAT.
9 AND SO IF IT IS THE DEFENSE EFFORT TO ASK
10 THE COURT TO MAKE CERTAIN RULINGS PRETRIAL WITH
11 RESPECT TO THAT, I NEED A BETTER PROFFER FROM THE
12 DEFENSE AS TO WHY I WOULD MAKE A PRETRIAL RULING ON
13 SOMETHING THAT'S GOVERNED BY THE RULES OF EVIDENCE.
14 MR. VERTNER: WELL, YOUR HONOR, THIS
15 ORIGINALLY CAME OUT AND THE PAPERWORK THAT WAS
16 ORIGINALLY FILED WAS MY MOTION IN LIMINE TO
17 PRECLUDE ANY GOVERNMENT ATTEMPT TO INTRODUCE
18 EVIDENCE OF PROCEEDINGS BEFORE THE STATE BAR THAT
19 HAD TO DO WITH THE TWO CHECKS THAT WERE THE PRODUCT
20 OF A CIVIL SUIT THAT ARE THE SUBSTANCE OF THIS
21 INQUIRY.
22 BUT IN THE CIVIL SUIT THE INQUIRY WAS,
23 DID MS. HARMON KNOWINGLY TAKE THE CHECKS THAT
24 BELONGS TO YAN EBYAM AND PUT THEM IN HER TRUST
25 ACCOUNT AND USE PROCEEDS TO REPRESENT MR. CHRIS
10
1 PANTAGES, THE TWO HAD BOTH BEEN PREVIOUS PARTNERS
2 IN THIS SILICON VALLEY RESALE.
3 SO THAT WAS THE SUBJECT OF THE CIVIL
4 SUIT. THE ATTORNEY IN THAT CASE, MR. MACPHERSON
5 WENT TO THE STATE BAR. THE STATE BAR INVESTIGATED
6 THAT AND SAID THAT WE ARE NOT GOING TO PROCEED AT
7 THIS TIME, WE ARE MAKING A NO FINDING AT THIS TIME.
8 I INTENDED TO BRING IN THE NO FINDING
9 ORDER. THE GOVERNMENT RESPONDED VEHEMENTLY THAT IT
10 DIDN'T WANT THAT IN BECAUSE IT WASN'T A FINAL
11 ARBITRATION AND IT COULD BE REOPENED AT A LATER
12 TIME, IT WASN'T COLLATERAL ESTOPPEL, IT WAS AN
13 ADMINISTRATIVE PROCEEDING, ET CETERA, AND ACTUALLY
14 AGREED WITH THE GOVERNMENT'S POSITION ON THAT, AND
15 JUST ARGUED UNDER 403 THAT THIS IS VERY TIME
16 CONSUMING TO GO INTO ALL THIS.
17 NOW, I DON'T PLAN ON BRINGING ANY
18 CHARACTER WITNESSES INTO THIS CASE AND OPENING UP
19 CHARACTER AS SUCH, BUT THE PREJUDICIAL VALUE BEFORE
20 A JURY TRYING TO EVEN TALK ABOUT STATE BAR
21 PROCEEDINGS IS VERY PREJUDICIAL TO MS. HARMON IN
22 THIS CASE WHEN, AS AN ATTORNEY, SHE TOOK MONEY IN
23 HER TRUST ACCOUNT FOR THE REPRESENTATION OF
24 MR. PANTAGES, A CRIMINAL DEFENDANT.
25 AND THE ISSUE IS, DID SHE KNOW IT WAS
11
1 STOLEN MONEY, PROCEEDS OF STOLEN PROPERTY, NUMBER
2 ONE, AND DID SHE INTEND TO CONCEAL, ET CETERA.
3 NOW ANYTHING GOING INTO STATE BAR
4 PROCEEDINGS AGAINST HER WOULD BE IMPROPER AND TIME
5 CONSUMING UNDER 403.
6 NOW I JUST GOT THE STATE BAR PROCEEDINGS
7 AND THEY INTEND TO INTRODUCE ON TODAY'S DATE. I
8 HAVEN'T GONE THROUGH IT, I HAD A BRIEF CONVERSATION
9 WITH MR. CHENG ABOUT A LETTER THE ATTORNEY WROTE
10 PRESUMING -- WHAT THE ATTORNEY WROTE ON HER BEHALF
11 TO THE STATE BAR CAME FROM MS. HARMON THAT HE WANTS
12 TO INTRODUCE IN HIS CASE IN CHIEF.
13 I HAVEN'T RUN ACROSS THAT LETTER IN THE
14 DISCOVERY THEY HAVE GIVEN ME, BUT APPARENTLY HE
15 THINKS IT'S SOMEWHAT HELPFUL.
16 I JUST THINK IT'S A VERY DANGEROUS AREA.
17 NUMBER ONE, HE'S SAYING WHERE IT WAS RECOMMENDED
18 SHE BE DISBARRED. IT WAS NEVER RECOMMENDED, IS MY
19 UNDERSTANDING, THAT SHE BE DISBARRED, IT WAS
20 RECOMMENDED THAT SHE BE SUSPENDED.
21 BUT ALL THESE OTHER COLLATERAL ISSUES,
22 ESPECIALLY WHEN SHE TAKES THE WITNESS STAND ON
23 WHETHER ATTORNEYS WERE -- I MEAN, CLIENTS WERE
24 HAPPY OR NOT OR WHAT, I DON'T KNOW. THERE WERE A
25 NUMBER OF COMPLAINTS WHERE PEOPLE CAME. A NUMBER
12
1 OF THEM WERE FOUND NOT TO BE TRUE, A COUPLE WERE.
2 BUT THIS CERTAINLY, AS FAR AS
3 CONSIDERATIONS OF TIME CONSUMING TO THE COURT, I
4 MEAN, WHERE DO I GO? I START FROM HERE AND GO OUT.
5 WHEN I HAD A WITNESS LIST THAT CONSISTED OF FIVE OR
6 SIX PEOPLE, NOW I HAVE A WITNESS LIST THAT CONSISTS
7 OF 20 OR 30.
8 THIS IS NOT THE FORUM TO CONDUCT THAT
9 INQUIRY. I MEAN, THE ISSUES ARE FAIRLY SIMPLE
10 BEFORE THIS COURT UNLESS WE START GETTING INTO THAT
11 AND THE PREJUDICIAL VALUE TO HER IS INCREDIBLE.
12 SO IT IS OF SOME CONCERN TO IRON THIS
13 OUT, BUT I DON'T KNOW IF I CAN FULLY ADDRESS IT
14 UNTIL I SEE WHAT HE HAS THERE. SOME OF THE ITEMS I
15 HAVEN'T SEEN, SOME I HAVE.
16 THE COURT: WELL, I PRESUME THAT ANYTHING
17 THAT IS BEING OFFERED IS NOW BEING DISCLOSED TO YOU
18 FROM THIS STATE BAR FILE.
19 MR. VERTNER: ON TODAY'S DATE, YES.
20 THE COURT: ALL RIGHT. SO AS I
21 UNDERSTAND IT, THIS IS ONLY IF THERE IS A DEFENSE
22 CASE AND ONLY IF THAT CASE CONSISTS OF MS. HARMON
23 ACTUALLY TESTIFYING BECAUSE IF SHE TESTIFIES HER
24 OWN CREDIBILITY IS SUBJECT TO ATTACK BY WAY OF
25 EVIDENCE.
13
1 I'M SOMEWHAT CONCERNED THAT I NEED TO
2 HAVE A BETTER APPRECIATION OF WHAT THESE STATE BAR
3 PROCEEDINGS ARE ALL ABOUT BECAUSE THOSE ARE IN THE
4 NATURE OF CIVIL PROCEEDINGS, THEY'RE NOT CRIMINAL
5 IN NATURE, AND ACCUSATIONS ARE HEARSAY.
6 AS I WOULD UNDERSTAND IT, IT WOULD BE
7 SOMEONE MAKING A STATEMENT ABOUT SOMETHING THAT
8 WOULDN'T BE HERE TESTIFYING ABOUT IT, SO YOU
9 COULDN'T CROSS-EXAMINE WHAT IS GOING ON.
10 IF MS. HARMON SAYS, I'VE NEVER BEEN THE
11 SUBJECT OF A STATE BAR DISCIPLINARY PROCEEDING OF
12 ANY KIND, THEN THE FACT OF IT CAN COME IN FOR
13 IMPEACHMENT PURPOSES.
14 I DO NOT KNOW THE RELATIONSHIP BETWEEN
15 THESE PROCEEDINGS AND WHAT'S GOING ON IN THIS CASE,
16 BUT THAT WOULD BE THE SUBJECT OF SOME CONCERN. SO
17 I WILL STUDY WHAT I HAVE.
18 IF THERE'S MORE TO GIVE TO ME ON THESE
19 MOTIONS, I WOULD APPRECIATE HAVING IT SO THAT I CAN
20 GIVE YOU A PRETRIAL RULING GOING AS FAR AS I CAN.
21 SOMETIMES MY EXPERIENCE IS THAT I NEED TO BE IN THE
22 MIDDLE OF THE TRIAL TO SEE WHAT THE GOVERNMENT'S
23 CASE IS BEFORE I HAVE A BETTER APPRECIATION FOR IT.
24 THE COURT: I WON'T CALL ON FULL ARGUMENT
25 AT THIS POINT.
14
1 YOU WANT TO COMMENT?
2 MR. CHENG: I JUST WANT TO MAKE SURE THE
3 COURT UNDERSTANDS THE DIFFERENCE BETWEEN TWO OF THE
4 STATE BAR ACTIONS WE ARE TALKING ABOUT. I WANTED
5 TO START MAKING A DIFFERENTIATION BETWEEN THE TWO.
6 THE ITEMS THAT WERE ISSUES BROUGHT UP BY
7 THE STATE BAR ACTION, IN THE GOVERNMENT'S MIND IT
8 SHOULD ONLY BE A QUESTION IF IN FACT THERE ARE
9 CHARACTER WITNESSES FROM MS. HARMON WHO TESTIFIED
10 OR IF MS. HARMON TESTIFIES HERSELF. AS YOU
11 INDICATED, THAT'S SOMETHING THAT WILL BE GOVERNED
12 BY THE RULES OF EVIDENCE, WHETHER THAT'S ADMISSIBLE
13 OR NOT IN A CROSS-EXAMINATION SITUATION.
14 THE OTHER ITEM THAT MR. VERTNER GOES BACK
15 TO IN TRYING TO MIX UP NOT NECESSARILY
16 INTENTIONALLY BUT TO KNOW THE TWO TOGETHER, IS
17 DISTINCT FROM THAT. THE ALLEGATIONS OF ESSENTIALLY
18 MISCONDUCT THAT WAS LEVIED AGAINST HER BY
19 MR. MACPHERSON IS DIFFERENT FROM THOSE ALLEGATIONS
20 THAT SHE WENT TO TRIAL FOR. IT WAS NOT PART OF ANY
21 OF THE ALLEGATIONS THAT SHE WENT TO TRIAL FOR.
22 BUT IT IS RELEVANT BECAUSE IT HAS
23 EVERYTHING TO DO WITH HER CONDUCT RELATED TO TAKING
24 THE TWO CHECKS THAT ARE AT ISSUE IN THIS PARTICULAR
25 CASE.
15
1 THAT'S WHY HER RESPONSE, MS. HARMON'S
2 RESPONSE TO THE STATE BAR WHEN THEY MADE INQUIRIES
3 OF WHAT DID YOU DO, WHY DID YOU DO IT, AND WHAT DID
4 YOU KNOW, ALL OF THOSE STATEMENTS WERE HER
5 STATEMENTS THROUGH HER ATTORNEY TO MAKE A RESPONSE
6 TO THE STATE BAR ACTION AS TO HER CONDUCT.
7 AT THE VERY MINIMUM IT SHOWS SHE DID IT,
8 MEANING SHE TOOK THE CHECKS. HER RESPONSE ALSO
9 INDICATES THAT SHE NEGOTIATED THE CHECKS DEPOSITED
10 INTO THE ACCOUNT. AND SHE EVEN GOES AS FAS AS TO
11 INDICATE THE FUNDS WERE RETURNED TO MR. PANTAGES.
12 ALL THREE OF THOSE THINGS ARE RELEVANT,
13 CERTAINLY RELEVANT INFORMATION IN THIS PARTICULAR
14 TRIAL BECAUSE IT IS AN ADMISSION ESSENTIALLY BY
15 HER, IT WILL BE THROUGH HER ATTORNEY IN THE STATE
16 BAR INQUIRY OF WHAT SHE DID WITH THOSE CHECKS.
17 THE COURT: AND YOU ALL SUPPLIED ME WITH
18 THE CASE AUTHORITY APPLYING WHAT THE LAWYER SAYS
19 AGAINST HER.
20 MR. CHENG: THAT'S AN INTERESTING ISSUE,
21 WE HAVE NOT DONE THAT; HOWEVER, IT CALLS INTO
22 QUESTION IF THE ATTORNEY IS REPRESENTING
23 MS. HARMON, DOESN'T THAT INFORMATION IMPUTE TO
24 MS. HARMON BECAUSE THAT --
25 THE COURT: LOGICALLY, I COULD SEE IT
16
1 MIGHT FOLLOW, BUT SOMETIMES LAWYERS MAKE ARGUMENT,
2 AND WHAT IS ADMISSIBLE INTO EVIDENCE ARE STATEMENTS
3 NOT ARGUMENTS MADE BY THE LAWYER.
4 SO IF YOU ARE OFFERING IT AS A PRIOR
5 INCONSISTENT STATEMENT OF THE PARTY IT HAS TO BE A
6 STATEMENT OR IT CAN BE ADOPTED, BUT THESE KINDS OF
7 THINGS YOU NEED TO PAY ATTENTION TO AND GIVE ME
8 YOUR BEST BRIEF WITH RESPECT TO WHETHER OR NOT I
9 SHOULD APPLY IT AGAINST THE DEFENDANT AS OPPOSED TO
10 THE LAWYER.
11 MR. CHENG: WE APPRECIATE THAT, BUT I
12 DON'T THINK THAT NECESSARILY THERE'S ANY DISPUTE ON
13 THE PART OF THE DEFENSE. I COULD BE WRONG BECAUSE
14 THEY ARE NOT STIPULATING TO MUCH AT ALL IN THIS
15 CASE, BUT I DON'T THINK THERE'S ANY DISPUTE AT THAT
16 TIME TO THE FACT SHE RECEIVED THE CHECKS,
17 NEGOTIATED THE CHECKS, AND SHE GAVE BACK MONEY TO
18 MR. PANTAGES.
19 THE ONLY DISPUTE, AS MR. VERTNER HAS
20 PREVIOUSLY INDICATED, IS WHAT DID SHE KNOW ABOUT
21 THE CHECKS? AND MORE IMPORTANTLY, AS IT RELATES TO
22 THE COUNTS IN THE INDICTMENT, WHAT DID SHE KNOW
23 WHEN SHE CUT THOSE CHECKS OR A GOOD PART OF THAT
24 MONEY BACK TO MR. PANTAGES?
25 THE COURT: KNOWLEDGE IS OFTEN VERY
17
1 DIFFICULT TO PROVE. YOU CAN DO IT THROUGH CONDUCT,
2 AND HERE IT SOUNDS LIKE THE REASON YOU'RE OFFERING
3 THIS IS TO PROVE THAT IF A LAWYER MET AN ARGUMENT
4 IT WOULD HAVE TO BE BASED ON KNOWLEDGE.
5 AND I'M NOT CLOSING YOU OFF ON THAT, IT'S
6 JUST THAT AS I THINK IT GOES, I WANT TO STUDY THAT
7 ISSUE AND MAKE SURE THAT -- AND THAT'S THE KIND OF
8 THING IN LIMINE, I CAN GIVE YOU AT THE BENEFIT OF
9 THE COURT'S RULING IN ADVANCE OF TRIAL.
10 THE LAST OF THEM HAD TO DO WITH AN EXPERT
11 WITNESS OR EXCLUDING WITNESSES FROM PROVIDING
12 ALLEGED EXPERT OPINION ON WHETHER CRIMES WERE
13 COMMITTED BY MS. HARMON. I DON'T PRESUME THE
14 GOVERNMENT IS OFFERING THAT ANYWAY.
15 MR. FONDO: THAT'S CORRECT, YOUR HONOR.
16 BUT THE CLARIFICATION, YOUR HONOR, IS THAT I THINK
17 THE EXPERTS ARE PERMITTED TO TESTIFY, BASED ON
18 HYPOTHETICALS, WHETHER A CERTAIN ACT IS CRIMINAL OR
19 NOT.
20 SO THEY WOULDN'T BE TESTIFYING THAT. AND
21 YES, YOU KNOW, THE DEFENDANT COMMITTED MONEY
22 LAUNDERING, SO NO, WE AGREE ON THAT ASPECT OF IT,
23 BASED ON THE HYPOTHETICAL, WHETHER SOMETHING WAS
24 ILLEGAL OR NOT; WE DO BELIEVE THAT WOULD BE
25 PERMISSIBLE.
18
1 THE COURT: I DON'T UNDERSTAND.
2 IN OTHER WORDS, SOMEONE GIVE ME THE
3 HYPOTHETICAL THAT YOU'RE ACTUALLY SPEAKING OF
4 BECAUSE I DON'T ORDINARILY ALLOW EXPERTS IN A
5 CRIMINAL CASE TO EXPRESS OPINIONS ON THE CRIMINAL
6 LAW. THAT'S MY JOB TO DEFINE WHAT IS THE CRIME,
7 WHAT ARE THE ELEMENTS AND FACTUALLY YOU HAVE TO
8 BRING YOURSELF WITHIN IT.
9 NOW I CAN UNDERSTAND IN A CASE THAT
10 BORDERS ON MALPRACTICE WHERE SOMEONE CAN SAY WHAT
11 THE STANDARD OF CARE IS OF LAWYERS AND THAT SORT OF
12 STUFF, BUT I NEED TO KNOW MORE BEFORE I COULD SAY
13 CATEGORICALLY YOU COULD CALL AN EXPERT ON WHETHER
14 SOMETHING IS A CRIME.
15 MR. FONDO: SURE, YOUR HONOR. LET ME
16 GIVE A SCENARIO.
17 IF THE HYPOTHETICAL WAS PRESENTED THAT
18 THE DEFENDANT ATTORNEY ACCEPTED MONEY THAT HE OR
19 SHE KNEW WAS FROM STOLEN GOODS, FROM A CLIENT,
20 DEPOSITS THAT MONEY AND THEN RETURNED THE VAST
21 MAJORITY OF THE MONEY BACK TO THE CLIENT KNOWING
22 THAT THAT WAS THE PROCEEDS OF ILLEGAL GAINS AND WAS
23 GIVING IT BACK TO THE CLIENT, WOULD THAT BE AN
24 ILLEGAL ACT?
25 THE COURT: AND WHAT DO YOU CALL, ANOTHER
19
1 U.S. ATTORNEY TO TALK ABOUT THAT?
2 MR. FONDO: NO, YOUR HONOR. WE HAVE --
3 ACTUALLY, ONE OF THE EXPERTS NAMES A CRIMINAL
4 DEFENSE LAWYER.
5 THE COURT: HOW DOES THAT PERSON KNOW
6 WHAT IS A CRIME?
7 MR. FONDO: BASED ON THEY'VE BEEN
8 PRACTICING FOR 40 YEARS IN THAT AREA.
9 THE COURT: SO NO, I WON'T ALLOW YOU TO
10 PUT ON AN EXPERT EITHER THROUGH HYPOTHETICALS OR
11 OTHERWISE, TO RENDER OPINIONS AS TO WHETHER OR NOT
12 SOMETHING IS CRIMINAL.
13 THE ELEMENTS OF A CRIME WILL BE DEFINED
14 BY THE COURT AND I WOULDN'T HAVE ANY EXPERT IN COME
15 ON AND SAY, WELL, THE GOVERNMENT HAS MET ITS BURDEN
16 OF PROOF ON THOSE SO I WILL READ THE MOTION WITH
17 CARE BUT I'M NOT PREDISPOSED TO GRANT A MOTION -- I
18 AM TO KEEP AN EXPERT FROM GIVING OPINION ON WHETHER
19 CRIMES WERE COMMITTED UNDER VARIOUS CIRCUMSTANCES,
20 PARTICULARLY IF THEY, THE HYPOTHETICAL MEETS THE
21 FACTS OF THIS CASE BECAUSE IT'S HARD TO DISTINGUISH
22 THEM, AND HAVING THE PERSON SAY IN MY OPINION THE
23 DEFENDANT COMMITTED A CRIME.
24 HAVE YOU THOUGHT ABOUT THE SCHEDULE WE
25 HAVE? WE ADDED A DAY. I PRESUME WE CAN MODIFY OUR
20
1 SCHEDULE A LITTLE BIT TO TAKE AWAY A DAY ON THE
2 OTHER END, EXCEPT FOR YOUR WITNESSES. I ALWAYS
3 LOOK TO THE GOVERNMENT FOR THE TIME AND THEN KIND
4 OF GIVE AN EQUAL AMOUNT OF TIME TO THE OTHER SIDE
5 WITH THE EXPECTATION THAT PERHAPS THAT WILL HAVE TO
6 BE ADJUSTED EITHER ENLARGEMENT OR REDUCTION BASED
7 UPON WHAT THE GOVERNMENT'S CASE IS ALL ABOUT.
8 MR. VERTNER: YOUR HONOR, WE HAVEN'T
9 RECEIVED ANY WITNESS STATEMENTS, GRAND JURY,
10 ANYTHING LIKE THAT. I PREPARED IN LIMINE MOTIONS,
11 BUT IT'S DIFFICULT WITHOUT RECEIVING ALL THE ITEMS,
12 BUT I UNDERSTAND THE JENCKS ACT.
13 NOW I'VE BEEN TOLD WE ARE GOING TO GET
14 MATERIALS TODAY OR TOMORROW.
15 THE COURT: WHERE'S YOUR WITNESS LIST?
16 MR. VERTNER: THEY PRODUCED A WITNESS
17 LIST WAY BACK IN DECEMBER OF LAST YEAR AND THEN
18 THEY ADDED TO IT BY DESIGNATING THEIR TWO EXPERT
19 WITNESSES THEY WANT TO TESTIFY AS TO WHETHER THEY
20 THINK IT'S CRIMES OR WHAT NOT.
21 THE COURT: WHERE IS YOUR WITNESS LIST?
22 MR. FONDO: WE WILL FILE IT THIS
23 AFTERNOON. OUR UNDERSTANDING WAS DEFENSE WAS
24 MOVING TO CONTINUE THE CASE AND THAT'S WHY WE
25 DIDN'T FILE THE EXHIBIT AND WITNESS LIST.
21
1 THE COURT: MAKE SURE YOU LODGE A COPY
2 WITH THE COURT.
3 BUT IN ANSWER TO MY QUESTION ABOUT YOUR
4 SCHEDULE, YOU HAVE AN ADEQUATE SCHEDULE TO PRESENT
5 YOUR CASE GIVEN REASONABLE CROSS-EXAMINATION?
6 MR. FONDO: YES, YOUR HONOR, WE DO.
7 MR. VERTNER: IS THAT SIX DAYS,
8 YOUR HONOR?
9 THE COURT: WELL, I GAVE YOU A SCHEDULE.
10 I HAVEN'T COUNTED UP THE NUMBER OF SESSIONS BUT NOW
11 I HAVE YOU GOING -- JURY SELECTION IS ON THE 6TH.
12 SO YOUR EVIDENTIARY CASE WILL START ON THE 7TH, SO
13 YOU WILL HAVE THREE DAYS THAT WEEK GOING FROM 9
14 UNTIL NOON AND 1 TO 4.
15 COME BACK ON THE NEXT WEEK TUESDAY,
16 WEDNESDAY, THURSDAY AND FRIDAY 9 TO NOON, 1 TO 4.
17 AND I ACTUALLY HAD YOU STARTING JURY DELIBERATIONS
18 ON FRIDAY.
19 SO IT SEEMS TO ME YOU MIGHT BE ABLE TO
20 FINISH UP YOUR EVIDENCE SOMETIME ON THURSDAY AND
21 ARGUE AND SUBMIT ON THURSDAY AFTERNOON.
22 MS. GARCIA JUST GAVE ME A NOTE THAT SHE'S
23 HAD YOU SET FOR TEN SESSIONS, AND THAT'S CONSISTENT
24 WITH WHAT I HAD.
25 IS THIS A CASE WHERE THERE'S ANY
22
1 VOLUMINOUS EXHIBITS OR ANYTHING OF THAT KIND?
2 MR. FONDO: YOUR HONOR, DEFENSE I
3 GUESS -- ROUGHLY THERE'S APPROXIMATELY GIVE OR TAKE
4 70 OR 80 EXHIBITS PRESENTING BY THE GOVERNMENT. A
5 LOST THOSE WE BELIEVE COULD BE DEALT WITH IN
6 STIPULATION; FOR INSTANCE, THE VAST MAJORITY OF THE
7 RECORDS ARE STATE COURT FILINGS AND ALSO BANK
8 RECORDS. I WOULD SAY THOSE CONSTITUTE ROUGHLY
9 60 PERCENT, OR 60 DOCUMENTS ROUGHLY.
10 AND THEN THERE'S ALSO TWO FED EX EXHIBITS
11 THAT WE WOULD ASK THE COURT IF WE COULD ADMIT BY
12 AFFIDAVIT VERSUS THE WITNESSES.
13 BUT MY UNDERSTANDING IS THE DEFENSE IS
14 NOT WILLING TO STIPULATE TO THOSE. SO WE WILL TAKE
15 LONGER TO PRESENT ALL THAT EVIDENCE THROUGH THOSE
16 WITNESSES.
17 THE COURT: JUST IN TERMS OF BANK
18 RECORDS, I SEE A NUMBER OF CHECKS AND THOSE SORTS
19 OF THINGS, IT WOULD BE HELPFUL TO HAVE A SUMMARY
20 EXHIBIT, PUT IT ON A CHART OR SOMETHING SO WE CAN
21 FIGURE IT THROUGH. EVEN THOUGH YOU HAVE TO LAY A
22 FOUNDATION FOR THE RECORDS, THE MAIN TIME IS SPENT
23 UNDERSTANDING THEM.
24 IF YOU HAD A CHART OR SOMETHING THAT
25 WOULD TAKE THOSE VOLUMINOUS RECORDS AND PUT THEM
23
1 INTO SOME SORT OF A GRID AND HAVE AN IMPORT TO IT,
2 OF COURSE IT'S SUBJECT TO CROSS-EXAMINATION, BUT
3 THAT I WOULD EXPECT AS A MINIMUM RATHER THAN GOING
4 THROUGH EACH ONE OF THESE DOCUMENTS.
5 I DON'T REQUIRE THAT THE DEFENSE
6 STIPULATE TO ANYTHING SO A STIPULATION IS ALWAYS
7 VOLUNTARY AS FAR AS THE COURT IS CONCERNED.
8 IT IS HELPFUL IF THERE'S NO CONTROVERSY
9 OVER IT TO HAVE THE DEFENSE STIPULATE, BUT
10 OTHERWISE I DON'T REQUIRE IT.
11 MR. FONDO: YOUR HONOR, IF I MAY JUST --
12 I APPRECIATE THE CHART SUMMARY ISSUE AND WE WILL
13 ABSOLUTELY DO THAT.
14 IF WE'VE GOT -- THERE ARE ISSUES ABOUT
15 WHO SIGNED CHECKS OR THINGS OF THAT NATURE, SO I
16 THINK WE WILL BE WALKING THROUGH EACH OF THESE
17 EXHIBITS, UNFORTUNATELY, TO IDENTIFY WHO SIGNED IT
18 AND THINGS OF THAT NATURE, ITS IMPORT OR ET CETERA.
19 SO I DON'T WANT TO MISLEAD THE COURT THAT
20 BY USING THE CHART OR SUMMARY EXHIBIT THAT THAT
21 WILL --
22 THE COURT: YOU CAN MAKE A CHART OF
23 THOSE, THOSE THAT ARE SIGNED OR ARE SIMILAR OR
24 WHATEVER. I'M JUST SAYING YOU DON'T HAVE TO GO
25 THROUGH EACH ONE. AND THE BEST WAY FOR PEOPLE TO
24
1 MAKE COMPARISONS IS TO PUT THEM UP SIDE-BY-SIDE SO
2 YOU CAN SEE THEM AS OPPOSED TO ONE AT A TIME.
3 THERE ARE WAYS TO ORGANIZE THE EXHIBITS
4 SO THAT THAT'S MORE EASILY DONE. IS THIS A CASE
5 WHERE THERE WAS A CO-DEFENDANT AT ONE POINT?
6 MR. CHENG: THERE WAS.
7 THE COURT: IS THAT PERSON TESTIFYING?
8 MR. CHENG: HE IS.
9 THE COURT: SO --
10 MR. CHENG: WE SHOULD TALK ABOUT THAT AS
11 WELL. THAT BRINGS UP A NUMBER OF ISSUES, ONE OF
12 WHICH REQUIRES COURT APPROVAL AND COURT ORDERS.
13 MR. PANTAGES HAS PLED PURSUANT TO THE
14 PLEA AGREEMENT, MY ASSUMPTION IS THAT MR. VERTNER
15 HAS GOTTEN THAT BECAUSE IT WAS FILED IN THE CLEAR
16 MEANING THAT IT WAS NOT FILED UNDER SEAL.
17 THE SECOND ISSUE IS REGARDING THE
18 PRESENTENCING REPORT. A VERSION, I THINK A SECOND
19 VERSION OF THE PRESENTENCING REPORT HAS JUST BEEN
20 ISSUED BY PROBATION, AND MY ASSUMPTION IS THAT WE
21 SHOULD TALK ABOUT WHETHER ALL OF IT, PARTS OF IT OR
22 NONE OF IT ARE RELEASED TO THE DEFENDANT.
23 THE COURT: WELL, UNLESS I HEAR FROM HIS
24 LAWYER SOME ARGUMENT AS TO WHY PORTIONS OF IT
25 SHOULD NOT BE DISCLOSED, BECAUSE IF HE TESTIFIES IT
25
1 SEEMS TO ME THE ENTIRE DOCUMENT SHOULD BE AVAILABLE
2 TO DEFENSE LAWYERS. IT MAY NOT BE PUT INTO
3 EVIDENCE THE ENTIRE DOCUMENT, BUT IT SHOULD BE
4 AVAILABLE ESPECIALLY THE PLEA AGREEMENT ITSELF AND
5 ANY STATEMENTS IN THE PRESENTENCE REPORT
6 ATTRIBUTABLE TO THE DEFENDANT AND THE CIRCUMSTANCES
7 THAT MIGHT ACTUALLY LEAD TO THE QUESTION, ARE YOU
8 THE PERSON WHO MADE THIS STATEMENT OR IS THE AUTHOR
9 OF THIS STATEMENT OR THE SOURCE OF THIS STATEMENT.
10 MR. CHENG: I WILL NOTIFY MR. PANTAGES'S
11 COUNSEL REGARDING THAT. I SHOULD SAY THAT AS OF
12 FRIDAY I THINK FRIDAY OR THIS MORNING
13 MR. PANTAGES'S ATTORNEY HAS FILED OBJECTIONS TO THE
14 SECOND VERSION OF THE PRESENTENCING REPORT.
15 THE COURT: THAT'S THE -- IT'S EASIER TO
16 MAKE THOSE OBJECTIONS IF THE GOVERNMENT IS
17 INTENDING TO OFFER IT. AND IT DOES SEEM TO ME
18 THERE ARE CONFIDENTIALITIES THAT ARE ATTRIBUTED TO
19 THAT. BUT IF HE TESTIFIES, IF HE IS INTENDING TO
20 BE CALLED AS A WITNESS, STATEMENTS MADE BY HIM OR
21 MADE ON HIS BEHALF OR OF AND CONCERNING HIM ARE
22 PROPER MATTERS THAT THIS DEFENDANT SHOULD HAVE THE
23 OPPORTUNITY TO HAVE AVAILABLE TO CHALLENGE.
24 MR. CHENG: WHEN SHOULD I NOTIFY
25 MR. CANNON WHO REPRESENTS MR. PANTAGES TO APPEAR
26
1 BEFORE THE COURT REGARDING HIS POSITION?
2 THE COURT: WELL, THAT WOULD BE A GOOD
3 THING TO HAVE ON THAT FIRST DAY OF TRIAL SINCE IT
4 APPEARS NOW WE ARE ADVANCING THE TRIAL.
5 SO THAT AFTERNOON WOULD BE A PERFECT TIME
6 TO DO THAT.
7 MR. CHENG: IS THE COURT MEANING THE 6TH?
8 THE COURT: YES.
9 MR. CHENG: VERY WELL.
10 MR. VERTNER: YOUR HONOR, IF I MIGHT
11 BRIEFLY EXPLAIN.
12 I WENT ONLINE AND ATTEMPTED TO GET THE
13 PLEA AGREEMENT. IT IS FILED UNDER SEAL. AND
14 MR. PANTAGES IS TESTIFYING AND WE REPEATEDLY -- WE
15 NEED ALL THE STATEMENTS HE'S MADE TO LAW
16 ENFORCEMENT, TO THE PROBATION DEPARTMENT,
17 EVERYTHING, AND AS SOON AS POSSIBLE BEFORE TRIAL.
18 MR. PANTAGES, IN OUR OPINION, IS ALREADY
19 QUITE IMPEACHABLE BY INFORMATION I'VE HAD IN OTHER
20 STATEMENTS HE'S MADE DURING OTHER COURSES OF
21 PROCEEDINGS, BUT WE CERTAINLY NEED WHAT HE HAS SAID
22 NOW.
23 WE HAVE A BRIEF SUMMARY OF HIM MAKING A
24 CONFESSION ON THE DAY OF HIS ARREST, THAT'S ALL WE
25 HAVE. I PRESUME HE HAS BEEN DEBRIEFED ON MANY
27
1 OCCASIONS AND WE HAVE NONE OF THAT.
2 THE COURT: YOU'VE MADE FORMAL REQUESTS?
3 MR. VERTNER: YES, WE REQUESTED IT FROM A
4 FORMAL DISCOVERY MOTION WAY BACK WHEN.
5 THE COURT: I DON'T RECALL IT COMING TO
6 ME.
7 MR. VERTNER: YES, WE HAD A FORMAL
8 DISCOVERY MOTION AND WE WERE TOLD -- THE
9 GOVERNMENT'S RESPONSE IS WE UNDERSTAND OUR RULE 16
10 AND WE WILL PROVIDE THESE THINGS AND OF COURSE
11 STATEMENTS OF CO-DEFENDANTS ARE OUTSIDE OF THAT.
12 AND WE REQUESTED IT IN THE MEETING I'VE HAD AND
13 WHATEVER. AND JUST AS LONG AS I GET THEM NOW, I
14 MEAN, IT'S FINE. BUT I JUST -- THE DAY OF TRIAL
15 WITH SOME OF THEM FLOATING AROUND, I'M NOT SURE.
16 THE COURT: WHAT'S THE GOVERNMENT'S
17 POSITION?
18 MR. CHENG: IT'S A SIMPLE ONE. IF THEY
19 DON'T HAVE THE PLEA AGREEMENT BECAUSE THEY COULDN'T
20 GET IT OR THEY BELIEVE IT WAS FILED UNDER SEAL,
21 WE'LL GET A COPY OF THE PLEA AGREEMENT, NOT THE
22 FILE STAMPED ONE, THE ONE THAT'S EXECUTED, BECAUSE
23 WE DON'T HAVE ACCESS TO THAT ORIGINAL.
24 AS IT RELATES TO STATEMENTS OF
25 MR. PANTAGES, WE HAVE GIVEN UP ALL THE STATEMENTS
28
1 MR. PANTAGES HAS MADE. IF THERE ARE NOTES,
2 HOWEVER, THAT IS DIFFERENT. IF THERE ARE REPORTS
3 FROM HIS DEBRIEFINGS, WE DON'T HAVE THOSE.
4 I WILL CHECK AGAIN WITH THE AGENT WHO IS
5 HERE BEFORE THIS COURT TO MAKE SURE THAT THAT'S THE
6 CASE, BUT IF WE HAVE REPORTS WE WILL GIVE THOSE
7 OVER.
8 IT'S MY UNDERSTANDING THAT WE HAVE NO
9 FURTHER REPORTS OF ANY DEBRIEFINGS OF MR. PANTAGES.
10 THIS COURT CAN TAKE JUDICIAL NOTICE AS TO WHEN
11 MR. PANTAGES ACTUALLY FLED IN THIS PARTICULAR
12 INSTANCE.
13 THE COURT: MS. GARCIA INDICATED TO ME SO
14 FAR SHE'S CONCERNED THE PLEA AGREEMENT ISN'T FILED
15 UNDER SEAL BUT THE PLEA AGREEMENTS AS WELL AS
16 PRESENTENCE REPORTS SOMETIMES CARRY AS TO THE
17 PUBLIC DISCLOSURE AIRS OF CONFIDENTIALITY.
18 SO TO THE EXTENT THE U.S. ATTORNEY WOULD
19 CALL THIS PERSON AS A WITNESS, IT SHOULD DISCLOSE
20 TO THE DEFENSE A COPY OF ANY PLEA AGREEMENT, IT
21 DOESN'T HAVE TO BE THE ENDORSED FILE COPY, AS WELL
22 AS THE PRESENTENCE REPORT, AT LEAST THOSE PORTIONS
23 OF IT THAT HAVE TO DO WITH THE STATEMENTS OF THE
24 WITNESS AND ANY REPRESENTATIONS THAT HE'S MADE.
25 MR. VERTNER: AND HANDWRITTEN NOTES OR
29
1 REPORTS? I MEAN, I FIND IT IMPLAUSIBLE THAT THERE
2 AREN'T ON THESE DEBRIEFING SESSIONS, REPORTS
3 WRITTEN.
4 THE COURT: WELL, SOMETIMES YOU ARE
5 SURPRISED BECAUSE PEOPLE DON'T MAKE NOTES WHEN
6 THINGS DON'T REACH FRUITION. BUT TO THE EXTENT ANY
7 WITNESS IS TESTIFYING WHO MADE A REPORT ABOUT THE
8 EVENTS, THAT INCLUDES LAW ENFORCEMENT AS WELL, TO
9 THE EXTENT THE GOVERNMENT WOULD CALL THOSE PEOPLE
10 AS WITNESSES, THEIR STATEMENTS SHOULD BE DISCLOSED
11 TO THE DEFENSE.
12 MR. CHENG: WE CERTAINLY UNDERSTAND THAT.
13 FOR CLARIFICATION, SO I UNDERSTAND WHAT
14 THE COURT IS INDICATING, IF AN AGENT TAKES A
15 STATEMENT FROM A WITNESS AND THAT WITNESS ACTUALLY
16 TESTIFIES, THE NOTES OF THAT AGENT IS ONLY
17 DISCOVERABLE TO THE EXTENT THAT THAT AGENT
18 MEMORIALIZES AND THAT WITNESS ADOPTS WHAT HAS BEEN
19 MEMORIALIZED IN TERMS OF A STATEMENT TO THAT
20 WITNESS.
21 FOR INSTANCE, QUOTES OR SOMETHING THAT IS
22 ADOPTED DIRECTLY BY THE WITNESS. IF THAT IS THE
23 CASE, ABSOLUTELY, WE BELIEVE THAT MR. VERTNER AND
24 ANY DEFENSE ATTORNEY SHOULD GET THAT. HOWEVER, IF
25 THERE WERE NOTES FROM A DEBRIEFING OF A PARTICULAR
30
1 WITNESS WITHOUT THOSE KEY INGREDIENTS, THOSE QUOTES
2 OF DIRECT CITATIONS AND WITHOUT ADOPTION BY THE
3 WITNESS, THAT IS NOT JENCKS MATERIAL OF THAT
4 WITNESS AND THEREFORE NOT DISCOVERABLE.
5 THE COURT: AND THAT'S A RECITATION I
6 AGREE WITH. THE ONLY AREA NOT COVERED THAT IS IN
7 YOUR RECITATION WOULD BE THESE F.B.I. 302 OR 301
8 KIND OF REPORTS.
9 TO THE EXTENT THAT THESE INDIVIDUALS WILL
10 TESTIFY AND THEY MADE A FORMAL REPORT, THOSE SHOULD
11 BE DISCLOSED.
12 MR. CHENG: MEANING THE AGENT ACTUALLY
13 TESTIFIES. WE AGREE WITH THAT AS WELL.
14 THE COURT: BUT THE COURT WILL REMAIN
15 VIGILANT. IF SOME STATEMENT IS PROFFERED INTO
16 EVIDENCE WHICH YOU HAVEN'T BEEN PROVIDED WITH, I
17 WOULD INVITE YOU TO CALL TO THE COURT'S ATTENTION
18 THAT CIRCUMSTANCE IF IT DOES ARISE BECAUSE IT WOULD
19 BE UP TO THE COURT TO MAKE JUDGMENTS ABOUT WHETHER
20 OR NOT THERE'S SOMETHING IMPROPER ABOUT THAT COMING
21 IN AT TRIAL WHEN YOU WEREN'T PREVIOUSLY DISCLOSED
22 TO IT. THAT ENCOURAGES THE U.S. ATTORNEY TO MAKE
23 SURE THERE'S FULL DISCLOSURE TO THE DEFENSE TO
24 ANYTHING THAT IS LIKELY TO COME INTO EVIDENCE AS
25 PART OF THE GOVERNMENT'S CASE.
31
1 MR. VERTNER: I'M CONCERNED ABOUT THE
2 GIGLIO CONSTITUTIONAL ASPECTS OF IT WITH REGARD TO
3 IMPEACHING INFORMATION THAT MAY BE AN INCONSISTENT
4 STATEMENT BETWEEN THE ORIGINAL REPORT AND THE
5 CONFESSION AND THE NOTES THE AGENTS TOOK. WITHOUT
6 THAT BEING DISCLOSED TO THE DEFENSE, I THINK WE
7 SHOULD HAVE THAT FOR THAT PURPOSE.
8 THE COURT: WELL, THERE ARE RULES THAT I
9 FOLLOW ALONG WITH EVERYONE ELSE WHO HAS LOOKED AT
10 THIS.
11 THERE ARE INSTANCES WHERE F.B.I.
12 OFFICIALS WHO TAKE ROUGH NOTES AND PREPARE OFFICIAL
13 REPORTS, THEIR ROUGH NOTES THEY CAN DESTROY. IF
14 THEY KEEP THEM AROUND AND THEY ARE AVAILABLE AND
15 THEY USE THEM FOR THEIR PREPARATION OF TESTIMONY OR
16 USE THEM DURING TRIAL, YOU ARE FREE TO ASK FOR THEM
17 TO READ THEM AND USE THEM AT THAT TIME. BUT THIS
18 IS NOT A SITUATION WHERE OTHERWISE YOU ARE ENTITLED
19 TO THAT MATERIAL UNLESS THE GOVERNMENT IS INTENDING
20 TO RELY ON IT AS PART OF ITS EVIDENCE.
21 AS I SAID, IF THAT OCCURS AND THERE'S
22 SOME DISCLOSURE THAT WAS IMPROPER, BRING IT TO MY
23 ATTENTION AT THAT TIME. ANY OTHER ISSUES THAT YOU
24 WANT TO RAISE?
25 I WILL ADDRESS -- GOING BACK TO THE
32
1 MOTIONS IN LIMINE, I WILL ADDRESS THEM IN A
2 PRETRIAL ORDER AND I'LL GET THAT TO YOU AS QUICKLY
3 AS I CAN, PERHAPS LATER THIS WEEK OR EARLY NEXT
4 WEEK.
5 MR. VERTNER: YOUR HONOR, THERE WAS A
6 MOTION FILED ON THE 16TH, I BELIEVE, REGARDING A
7 WITNESS BY THE NAME OF INGRID HARRY.
8 THE COURT: THE 16TH OF THIS MONTH? I
9 HAVEN'T GOTTEN THAT YET. WHAT WAS THAT MOTION?
10 MR. VERTNER: IT'S AN IN LIMINE MOTION TO
11 PRECLUDE THE DEFENSE FROM GOING INTO PSYCHIATRIC
12 HISTORY, MEDICATIONS THIS WITNESS HAS TAKEN AND --
13 THE COURT: THIS IS A WITNESS WHO IS
14 GOING TESTIFY AS PART OF THE GOVERNMENT'S CASE IN
15 CHIEF?
16 MR. VERTNER: YES.
17 THE COURT: AND YOU ARE SEEKING IN LIMINE
18 TO KEEP OUT --
19 MR. VERTNER: THEY ARE SEEKING IN LIMINE
20 TO PRECLUDE ME FROM CROSS-EXAMINING THIS WITNESS ON
21 HER ABILITY TO PERCEIVE, RECOLLECT BASED UPON THE
22 PSYCHIATRIC CONDITION, DRUG USE OF WHETHER
23 MEDICATION OR WHATEVER BECAUSE SHE FEELS STRONGLY
24 ABOUT THE PRIVACY INTEREST.
25 THE COURT: SO YOU'VE MADE THAT MOTION.
33
1 HAVE YOU RESPONDED TO IT?
2 MR. VERTNER: I HAVE NOT RESPONDED. THEY
3 MADE IT ON THE 16TH. I HAVE A RESPONSE THAT HAS
4 NOT YET BEEN FILED. BASICALLY, IT'S DAVIS VERSUS
5 ALASKA IS THE MAIN CASE INVOLVED.
6 THE COURT: I DIDN'T SEE IT ON THE
7 DOCKET, DID YOU FILE?
8 MR. CHENG: WE DID, YOUR HONOR. IT WAS
9 FILED UNDER SEAL.
10 THE COURT: OH, I SEE. SO MAYBE THAT'S
11 WHY WE AREN'T SEEING IT. DID YOU LODGE A COPY WITH
12 THE COURT?
13 MR. FONDO: I BELIEVE ONE WAS LODGED. I
14 WILL VERIFY THAT WITH MY ASSISTANT.
15 I WILL ADDRESS IT WITH THE MOTION IN
16 LIMINE WHICH IS WE HAVE A WITNESS WHO IS THE
17 EX-WIFE OF CHRIS PANTAGES WHO IS MS. HARMON'S
18 CO-DEFENDANT. SHE WILL BE TESTIFYING AMONG OTHER
19 THINGS RELATING TO EVENTS THAT TOOK PLACE DURING
20 THE RELEVANT TIME PERIOD 2003 EARLY 2004.
21 SHE HAS CERTAIN MEDICATIONS SHE WAS ON,
22 THERE'S CERTAIN PSYCHIATRIC ISSUES AND RECORDS AND
23 THINGS OF THAT NATURE, HISTORY, AND WE ARE NOT
24 TRYING -- WE ARE TRYING TO SEEK AN EXPLORATION INTO
25 WHAT MEDICATION YOU WERE TAKING, WHAT DID YOUR
34
1 DOCTOR SAY ABOUT THIS PSYCHIATRIC CONDITION, WHAT
2 WERE YOU HOSPITALIZED FOR, THINGS LIKE THAT.
3 WE ARE NOT CONTESTING HIS ABILITY TO ASK,
4 WAS THERE ANYTHING THAT IMPACTED YOUR MEMORY? HAS
5 YOUR MEMORY BEEN CLOUDED IN ANY WAY? THE JURY CAN
6 BE TOLD, THIS WITNESS DUE TO MEDICATION OR HEALTH
7 ISSUES HER MEMORY IS OR IS NOT INCLUDED. BUT I
8 DON'T THINK THAT REALLY INVADES THE PRIVACY OF THIS
9 WITNESS. AND THE WITNESS, QUITE HONESTLY, IS
10 CONCERNED AND SCARED ABOUT HAVING HER FULL
11 PSYCHIATRIC AND MEDICAL HISTORY LAID OUT IN FRONT
12 OF THE COURT AND THE JURY.
13 THE COURT: I WILL LOOK AT THAT MOTION,
14 BUT IT DOES CONCERN THE COURT TO PUT ANY PARTY, THE
15 GOVERNMENT OR THE DEFENSE IN THIS CASE, IN A
16 POSITION WHERE SOMEONE HAS A MENTAL CONDITION AND
17 THE TRIER OF FACT IS NOT ABLE TO FULLY ASSESS THE
18 EFFECT OF THAT ON THE CREDIBILITY OR THE ACCURACY
19 OF THE WITNESS'S TESTIMONY.
20 ALL OF THAT ARE MATTERS THAT THE JUDGE
21 SHOULD BE ABLE TO EXPLORE.
22 NOW, I WILL ENTERTAIN REQUESTS TO CLOSE
23 THE COURTROOM IF THERE'S SOME MATTER OF THAT KIND,
24 SO THAT THE WITNESS ISN'T EMBARRASSED, TO SEAL THE
25 RECORD. BUT THIS IS A PUBLIC TRIAL AND EVEN THAT
35
1 WILL REQUIRE CONVINCING ME.
2 SO LET ME READ THAT MOTION. BECAUSE IT
3 WAS FILED UNDER SEAL AND APPARENTLY NOT LODGED WITH
4 MY CHAMBERS, I DIDN'T KNOW ABOUT IT SO I HAVEN'T
5 SEEN IT.
6 HAVE YOU FILED A PAPER IN RESPONSE?
7 MR. VERTNER: I HAVE A HARD COPY BUT I
8 HAVEN'T E-MAILED IT. WE CAN GET THAT ON FILE BY
9 TOMORROW.
10 THE COURT: SO YOU SHOULD LODGE A COPY OF
11 YOUR PAPER AS WELL. AND YOU CAN FILE IT UNDER SEAL
12 BECAUSE THE MOTION IS, BUT OUR COURT RELIES ON
13 THAT. AND THEN BRING TO THE CLERK'S OFFICE FOR
14 LODGING WITH OUR CHAMBER, A HARD COPY, SO I CAN
15 GIVE IT MY IMMEDIATE ATTENTION.
16 MR. FONDO: YOUR HONOR, THERE'S ONE OTHER
17 ISSUE, I BELIEVE, AND WE MAY HAVE RESOLVED THAT.
18 THERE'S THE ISSUE THAT CHRISTIAN PANTAGES, THE
19 DEFENDANT'S CO-DEFENDANT AND FORMER CLIENT, HAS
20 REQUESTED THAT SHE TURN OVER ALL HIS CLIENT FILES
21 INCLUDING ATTORNEY-CLIENT COMMUNICATIONS TO THE
22 GOVERNMENT.
23 I THINK THAT THE DEFENSE, AND I DON'T
24 MEAN TO MISSTATE ANYTHING, BUT I THINK THE DEFENSE
25 HAS NOW AGREED TO GIVE US A COPY SET OF THAT FILE.
36
1 THE DEFENSE DID GIVE A COPY SET TO
2 MR. PANTAGES AT LEAST A PARTIAL COPY SET SOME TIME
3 AGO, BUT PART OF THE ISSUE IS WHETHER OR NOT
4 MR. PANTAGES'S COUNSEL RECEIVED IS THE FULL ENTIRE
5 FILE, AND IT APPEARS IT IS NOT.
6 SO WHAT I WANT TO AVOID HAVING AT TRIAL
7 ARE ISSUES IF THERE'S A DOCUMENT THAT GETS
8 REFERENCED THAT WE DON'T HAVE AND MR. PANTAGES
9 SAYS, WELL, I GAVE IT TO MS. HARMON OR WHATEVER, I
10 WANT TO AVOID US SAYING MR. PANTAGES'S LAWYER GAVE
11 US WHAT WE HAD AND I THINK THAT, AND MR. VERTNER IS
12 SAYING THAT'S WHAT IS IN THE ENTIRE FILE.
13 THEY WANT TO ELIMINATE THAT AND I WANT TO
14 MAKE SURE WE HAVE A COMPLETE FILE, AND
15 MR. PANTAGES'S LAWYER DOES NOT BELIEVE HE HAS THE
16 COMPLETE FILE. NOT THROUGH ANY IMPROPER ACTIONS,
17 BUT HE JUST DOESN'T BELIEVE HE HAS THE ENTIRE FILE.
18 THE COURT: ALL RIGHT. SO THERE'S A
19 STIPULATION TO TURN IT OVER?
20 MR. FONDO: I DON'T WANT TO MISSTATE, BUT
21 I BELIEVE THAT'S THE AGREEMENT WE REACHED.
22 MR. VERTNER: WELL, WHEN MR. CANNON,
23 MR. PANTAGES'S LAWYER THE FIRST DAY WE APPEARED
24 BEFORE YOUR HONOR THE FIRST DAY I WAS IN THE CASE,
25 SAID HIS CLIENT WANTED A COPY OF THE FILE.
37
1 HIS ATTORNEY IS UNDER ABSOLUTE OBLIGATION
2 TO GIVE THAT. AT THAT TIME IT WAS A JOINT DEFENSE
3 EFFORT AND THEN THINGS CHANGED LATER ON. SO WHEN
4 WE GAVE WHAT WE BELIEVED TO BE A COPY OF THE ENTIRE
5 FILE, AND I DIDN'T GET IT BECAUSE HE ASKED HIS
6 ATTORNEY MS. HARMON TO GET IT, AND THEIR OFFICE
7 PREPARED IT AND SENT IT.
8 MR. PANTAGES HAS MADE SOME STATEMENTS
9 THAT HE WROTE OUT SOME DOCUMENT SHOWING HOW GUILTY
10 HE WAS AND WANTED HIS LAWYER TO HAVE THAT SO THAT
11 SHE COULD PROPERLY REPRESENT HIM.
12 I HAVEN'T SEEN ANY OF THAT IN THE
13 MATERIALS THAT I HAVE. WE WILL GO AHEAD AND
14 RECOPY, ALTHOUGH IT IS AT SOME SUBSTANTIAL EXPENSE,
15 WHAT WE'VE ALREADY PROVIDED AND ETHICALLY WE HAVE
16 TO TO THE CLIENT.
17 I DON'T KNOW IF THAT'S GOING TO RESOLVE
18 ANY ISSUES ON WHAT'S MISSING OR NOT BUT MAYBE IT
19 WILL. AT LEAST WE WILL ALL HAVE SOMETHING WHERE WE
20 CAN REFER TO THE SAME PAGE AND LINE AND VERSE ON
21 IT.
22 THE COURT: WELL, WHO HAS THE ORIGINAL
23 FILE?
24 MR. VERTNER: MS. HARMON HAS THE ORIGINAL
25 FILE OF MR. PANTAGES, HER CLIENT.
38
1 THE COURT: AND WHO HAS IT? I'M ASKING
2 IN THE PRESENT TENSE, WHERE IS THE ORIGINAL FILE
3 NOW?
4 MR. VERTNER: MS. HARMON.
5 THE COURT: SO IT'S IN HER POSSESSION.
6 IS THIS A FILE WHICH WILL COME INTO
7 EVIDENCE?
8 MR. VERTNER: NOT THE WHOLE FILE.
9 MR. FONDO: BUT THERE ARE PORTIONS OF IT.
10 THE COURT: SO SOME OF THIS IS COLLATERAL
11 TO OUR PROCEEDING. IT'S AN EFFORT ON THE PART OF
12 MR. PANTAGES, APPARENTLY, TO HAVE MATERIAL THAT HE
13 OTHERWISE IS ENTITLED TO AS A CLIENT.
14 MR. FONDO: CORRECT, YOUR HONOR, BOTH
15 RELATING TO THE CRIMINAL AND --
16 THE COURT: MY ONLY CONCERN WOULD BE THE
17 EVIDENTIARY VALUE OF IT. SO TO THE EXTENT YOU WISH
18 TO USE THE OFFICES OF THE COURT TO OBTAIN THESE
19 MATERIALS, THERE'S GOTTA BE A WAY OF DOING THAT TO
20 THE EXTENT IT HAS EVIDENTIARY VALUE IN THIS CASE
21 AND YOU WISH AN ORDER OF THE COURT ADDRESSING THAT,
22 I'M WILLING TO CONSIDER IT.
23 BUT OTHERWISE IT SEEMS TO ME THAT I
24 SHOULD STAY AWAY FROM MAKING RULINGS IN THE CONTEXT
25 OF A GOVERNMENT CLAIM AGAINST MS. HARMON TO ASSIST
39
1 MR. PANTAGES TO OBTAIN HIS FILE FOR OTHER PURPOSES.
2 TO THE EXTENT HE IS WISHING TO USE IT FOR
3 PURPOSES OF HIS TESTIMONY TO REFRESH HIS
4 RECOLLECTION AND THE GOVERNMENT WOULD WISH HIM TO
5 HAVE IT FOR THAT PURPOSE, I WOULD MAKE AN ORDER
6 MS. HARMON MAKE THAT FILE IN ITS ORIGINAL FORM
7 AVAILABLE FOR INSPECTION BY MR. PANTAGES, BUT I
8 NEED TO UNDERSTAND BETTER WHAT THAT IS.
9 NOW IT DOES SEEM TO ME THAT IT MAY BE
10 SUFFICIENTLY RELEVANT THAT WE SHOULD PUT IT IN A
11 NEUTRAL PLACE AND TURN IT OVER TO YOUR ATTORNEY SO
12 YOUR ATTORNEY HAS IT AND CAN MAKE JUDGMENTS ABOUT
13 WHAT, IF ANY, PORTIONS NEEDS TO BE TURNED OVER TO
14 THE CLIENT OR TO THE GOVERNMENT.
15 MR. VERTNER: I BELIEVE WE MADE A FULL
16 COPY OF IT. LIKE I SAID --
17 THE COURT: IF YOU HAVE THE ORIGINAL YOU
18 CAN CERTAINLY SATISFY YOURSELF THAT IT'S AVAILABLE.
19 SO IF HE WANTS TO LOOK AT IT, IT WILL BE AVAILABLE
20 FOR THAT INSPECTION.
21 MR. VERTNER: MS. HARMON INFORMS ME HER
22 OFFICE GAVE MR. PANTAGES'S LAWYER THE ORIGINAL
23 WHICH HE COPIED AND SENT BACK.
24 THE COURT: THOSE ARE THE KINDS OF THINGS
25 THAT CAN BE VERIFIED BETWEEN NOW AND WHEN WE START
40
1 TRIAL.
2 THE COURT: ANYTHING FURTHER?
3 MR. CHENG: YOUR HONOR, I DON'T WANT TO
4 BELABOR THE ISSUES BUT IT HELPS TO GET GUIDANCE
5 PRIOR TO TRIAL, IF I MAY.
6 FIRST OFF, AS IT RELATES TO JURY VOIR
7 DIRE, MY ASSUMPTION IS THAT THIS COURT'S PAST HAS
8 BEEN A THOUGHT NOT TO USE JURY QUESTIONNAIRES, IS
9 THAT STILL IN PLACE?
10 THE COURT: WE HAVE A QUESTIONNAIRE BUT
11 IT'S A STANDARD QUESTIONNAIRE HAVING TO DO WITH THE
12 BACKGROUND OF THE JURORS IN GENERAL AND NOT
13 SPECIFIC TO THE CASE.
14 THIS IS NOT SO LONG A TRIAL THAT I WOULD
15 WORRY ABOUT THE KIND OF A QUESTIONNAIRE OF THE
16 JURORS ABOUT THEIR AVAILABILITY OF THE LENGTH OF
17 THE TRIAL.
18 IF WE ARE STARTING RIGHT AFTER THE
19 HOLIDAY, THAT AVOIDS ALL OF THE PROBLEMS OF TRYING
20 TO PICK A JURY BEFORE THE HOLIDAY WHICH WAS
21 PRESENTED IF WE HAD STARTED THE WEEK BEFORE.
22 UNLESS I'M TOLD THAT THERE'S SOMETHING OF
23 A UNIQUE NATURE OF THIS CASE THAT YOU DON'T WANT
24 JURORS WHO HAVE -- FOR EXAMPLE, ARE SENSITIVE TO
25 SEXUAL MOLESTATION CASES, I CAN SOMETIMES SEND OUT
41
1 QUESTIONNAIRES TO AVOID THOSE PEOPLE COMING
2 FORWARD.
3 SO FAR AS I'M CONCERNED YOU WANT AS MANY
4 PEOPLE RESPONDING TO THE SUMMONS AND WE WILL HAVE
5 REGULAR VOIR DIRE.
6 MR. VERTNER: I PREPARED A QUESTIONNAIRE
7 AND GAVE A COPY OF IT.
8 THE COURT: I HAVEN'T SEEN IT. SOMETIMES
9 I CAN SEND A QUESTIONNAIRE DOWNSTAIRS WHILE THE
10 PANEL IS WAITING TO FILL OUT SO THAT YOU HAVE THAT
11 IN ADVANCE AND I WOULD BE HAPPY TO CONSIDER THAT.
12 MR. CHENG: I THINK THAT'S THE POINT.
13 THE GOVERNMENT DOESN'T WANT TO GO THROUGH THE
14 EXERCISE. GIVING ONE OUT IS HALF THE BATTLE.
15 READING AND DIGESTING IT BEFORE WE PICK A JURY IS
16 REALLY THE PROBLEM. WE JUST DON'T HAVE THAT TYPE
17 OF TIME.
18 WE ARE ABLE, HOWEVER, AS WE HAVE DONE IN
19 THIS COURT BEFORE, DO A NORMAL VOIR DIRE NOT ONLY
20 FROM THE COURT BUT FROM US IN THE 10 TO 15 MINUTES
21 THE COURT ALLOTS TO THE ATTORNEYS.
22 IF WE ARE GOING TO DO A JURY
23 QUESTIONNAIRE, NOT ONLY DO WE HAVE TO AGREE TO IT,
24 WE HAVE TO MAKE CHANGE TO WHAT HAS BEEN PROFFERED
25 OR PRESENTED BY THE GOVERNMENT. WE DON'T WANT TO
42
1 GO THROUGH THAT.
2 THE COURT: I'M NOT INTENDING TO GO
3 THROUGH A SPECIALIZED QUESTIONNAIRE AT THIS POINT.
4 I DIDN'T HAVE A REQUEST FOR IT.
5 ANY OTHER QUESTIONS?
6 MR. CHENG: TWO QUICK THINGS.
7 I TAKE IT WE'RE NOT GOING TO BE
8 DISCUSSING JURY QUESTIONS AT THIS POINT YET BECAUSE
9 MR. VERTNER HAS FILED AT LEAST TWO OTHER MOTIONS IN
10 LIMINE OR AT LEAST SPECIAL REQUESTS OF THIS COURT
11 TO EDIT OR OBTAIN TWO SPECIAL JURY INSTRUCTIONS AND
12 CERTAINLY A WHOLE HOST OF OTHER INSTRUCTIONS THAT
13 ARE NINTH CIRCUIT AS WELL AS OUTSIDE OF
14 NINTH CIRCUIT INSTRUCTIONS THAT I WANT TO DISCUSS.
15 I TAKE IT YOU WANT TO TAPER THAT AT THE
16 TRIAL OR CERTAINLY AT A JURY INSTRUCTION
17 CONFERENCE.
18 THE COURT: I NEED TO HAVE YOUR PREFERRED
19 INSTRUCTIONS IN ADVANCE OF THE TRIAL. SOMETIMES I
20 PRE INSTRUCT, SO MAYBE I SHOULD PICK A DATE AND
21 HAVE YOU, IF YOU HAVE THEM THEY ARE USUALLY HERE AT
22 THIS FINAL PRETRIAL CONFERENCE.
23 MR. CHENG: THE GOVERNMENT CAN CERTAINLY
24 FILE OUR SET OF REQUESTED JURY INSTRUCTIONS, ALL
25 NINTH CIRCUIT. HOWEVER, I THINK WHAT'S GOING TO
43
1 TAKE MOST OF THE COURT'S TIME ARE AT LEAST THE TWO
2 SPECIALS BEING PROFFERED BY THE DEFENSE.
3 THE COURT: NORMALLY THAT'S NOT THE KIND
4 OF THING I INVOLVED MYSELF WHEN I PRE INSTRUCT, SO
5 HAVING THOSE ON THE 6TH IS SUFFICIENT.
6 MR. CHENG: TWO OTHER QUICK THINGS, IF I
7 MAY.
8 AS IT RELATES TO WITNESSES, WE WILL BE
9 GIVING UP A WITNESS LIST TODAY, A CLEAR AND CONCISE
10 WITNESS LIST OF WHAT WE KNOW TO BE THE WITNESSES
11 THAT WE WILL HAVE TESTIFY.
12 I DON'T WANT TO MAKE IT SEEM AS THOUGH
13 THE DEFENSE SHOULD RELY ON OUR WITNESS LIST AND NOT
14 PLACE THOSE INDIVIDUALS THAT THEY BELIEVE THAT THEY
15 ALSO WANT TO HAVE CALLED IN THEIR CASE AND CHIEF
16 AND RELY ON OUR SUBPOENA FOR IT. BECAUSE WE MAY
17 CHANGE THAT AT THE VERY LAST MINUTE, WE MAY ADD TO
18 IT. CERTAINLY IN OUR MINDS AFTER PRETRIAL RULINGS
19 WE MAY ACTUALLY DELETE A NUMBER OF THEM.
20 THE COURT: VERY WELL. YOU UNDERSTAND
21 THAT. ANY PERSON YOU WANT TO TESTIFY YOU NEED TO
22 SUBPOENA ON YOUR OWN AND NOT RELY ON THE
23 GOVERNMENT.
24 MR. VERTNER: THERE WERE ONLY TWO
25 WITNESSES WE COULD NOT LOCATE. ONE WAS GINGER
44
1 WRIGHT, THE GOVERNMENT INDICATES THEY FOUND HER,
2 THEY ARE BRINGING HER IN.
3 THE COURT: THEY MIGHT NOT.
4 IN OTHER WORDS, THE POINT IS YOU SHOULD
5 NOT RELY UPON THE GOVERNMENT'S LIST OF WITNESSES IF
6 YOU WOULD WISH TO ELICIT TESTIMONY FROM THAT
7 INDIVIDUAL.
8 MR. VERTNER: OKAY.
9 WELL THEN THE GOVERNMENT HAD OFFERED
10 HELP, THEY GAVE ME SOME HELP TODAY. THE OTHER ONE
11 WAS YAN EBYAM WHO WE COULD NOT LOCATE AND THE
12 GOVERNMENT PROVIDED ME WITH CONTACT INFORMATION, AN
13 ATTORNEY OUT OF LOS ANGELES WHO PRESUMABLY WOULD
14 ACCEPT SERVICE OF PROCESS.
15 THE COURT: I DON'T NEED TO BURDEN THE
16 RECORD WITH YOU TELLING ME HOW YOU WORKED IT OUT,
17 SO IT SOUNDS LIKE YOU WORKED IT OUT.
18 MR. CHENG: ONE FINAL THING AS IT RELATES
19 TO DOCUMENTS.
20 WE HAVE CERTIFIED COURT DOCUMENTS FROM
21 THE STATE COURT ACTION RELATED TO THIS PARTICULAR
22 CASE. IT'S CERTIFIED ON TOP, ONE LARGE
23 CERTIFICATION FOR ALL THE DOCUMENTS UNDERNEATH IT.
24 WE ANTICIPATE NOT USING ALL OF THE STATE
25 COURT FILINGS OBVIOUSLY, AND JUDICIOUSLY DECIDED
45
1 ON, SAY, MAYBE TEN PERCENT OF THOSE DOCUMENTS.
2 WHEN WE PULL THOSE DOCUMENTS OUT AS EXHIBITS AS
3 INDIVIDUAL EXHIBITS IT WILL NOT CARRY THAT HE
4 CERTIFICATION THAT IS ON TOP.
5 DOES THIS COURT WANT THE GOVERNMENT TO GO
6 BACK AND GET THOSE INDIVIDUAL SHEETS CERTIFIED OR
7 CAN WE JUST HAVE A STIPULATION THAT WE'RE GOING TO
8 HAVE A COMPLETE FILE WITH THE TOP CERTIFICATION AND
9 EVERYTHING IN THAT STACK THAT WE'RE GOING TO BE
10 PULLING OUT IS DEEMED CERTIFIED?
11 THE COURT: WELL, I CAN TAKE NOTICE OF
12 ANYTHING THAT'S OFFICIALLY FILED AND SO IT ISN'T
13 NECESSARY FOR YOU TO DO IT BY ATTACHING MULTIPLE
14 CERTIFICATIONS IF YOU HAVE ONE, IF I'M SATISFIED
15 THAT THE CERTIFICATION INCLUDES A SET, WHAT YOU PUT
16 INTO EVIDENCE IS ALWAYS GOING TO BE A SUBSET AND
17 THAT'S FINE WITH THE COURT.
18 MR. CHENG: UNDERSTOOD.
19 THANK YOU, YOUR HONOR.
20 THE COURT: VERY WELL.
21 I WILL SEE YOU THEN ALL ON THE 6TH. I
22 LOOK FORWARD TO SEEING YOUR PRELIMINARY DOCUMENTS
23 AS YOU MOVE CLOSER TO TRIAL.
24 THE EXCHANGE OF WITNESSES, LODGE THAT
25 WITH THE COURT. I WILL GIVE YOU MY RULINGS ON THE
46
1 IN LIMINES AS QUICKLY AS I CAN.
2 MR. VERTNER: OUR WITNESS LIST HAD BEEN
3 PREVIOUSLY FILED, OUR VOIR DIRE IS FILED. I DO
4 HAVE TO FILE THE RESPONSE ON THE ONE IN LIMINE.
5 MAY WE HAVE A DATE FOR COMPLIANCE ON THE GRAND JURY
6 TESTIMONY?
7 MR. CHENG: I CAN STATE THAT RIGHT NOW.
8 MR. VERTNER WILL GET NO GRAND JURY
9 TESTIMONY. NOT BECAUSE WE DON'T WANT TO GIVE IT TO
10 HIM, BECAUSE THERE'S NO RELEVANT MATERIAL IN THE
11 GRAND JURY TESTIMONY THAT WE ARE GOING IT GIVE UP
12 MEANING THERE ARE NO WITNESSES THAT ARE TESTIFYING
13 FOR THE GOVERNMENT THAT HAVE BEEN BEFORE THE GRAND
14 JURY.
15 MR. VERTNER: WELL, INCLUDING POLICE
16 OFFICERS WHO WERE GOING TO TESTIFY?
17 MR. CHENG: REMEMBER, IF I MAY,
18 YOUR HONOR, I WILL RESPOND TO THE COURT AS OPPOSED
19 TO MR. VERTNER, NOT BECAUSE I DON'T --
20 THE COURT: I HAVEN'T ASKED YOU ANYTHING.
21 IT DOES SOMETIMES HELP ME TO HAVE THIS EXCHANGE.
22 I PRESUME THAT THE JENCKS ACT AND ALL OF
23 THOSE PROVISIONS HAVING TO DO WITH THE DISCLOSURE
24 OF THOSE PROVISIONS WILL BE COMPLIED WITH BY THE
25 GOVERNMENT. AND YOU HAVE EVERY RIGHT TO MAKE
47
1 OBJECTIONS IF THEY ARE NOT, BUT IF THE GOVERNMENT
2 HAS LOOKED AT ITS CASE IN CHIEF AND DOES NOT INTEND
3 TO CALL ANYONE WHOSE TESTIFIED BEFORE THE GRAND
4 JURY AND REPRESENTS THAT TO THE COURT, I WILL TAKE
5 THAT REPRESENTATION.
6 VERY WELL. THANK YOU, ALL.
7 MR. FONDO: THANK YOU VERY MUCH,
8 YOUR HONOR.
9 (WHEREUPON, THE PROCEEDINGS IN THIS
10 MATTER WERE CONCLUDED.)
11
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18
19
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22
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48
4 CERTIFICATE OF REPORTER
8 I, THE UNDERSIGNED OFFICIAL COURT
9 REPORTER OF THE UNITED STATES DISTRICT COURT FOR
10 THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH
11 FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY
12 CERTIFY:
13 THAT THE FOREGOING TRANSCRIPT,
14 CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND
15 CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS
16 SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS
17 HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED
18 TRANSCRIPTION TO THE BEST OF MY ABILITY.
19
20
21
22 __________________________
SUMMER A. FISHER, CSR, CRR
23 CERTIFICATE NUMBER 13185
24
25
49

Case5:08-cr-00938-JW Document105 TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE JAMES

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Case5:08-cr-00938-JW Document105 Filed06/29/10 Page1 of 49

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE NORTHERN DISTRICT OF CALIFORNIA

3 SAN JOSE DIVISION

16 FOR THE PLAINTIFF: UNITED STATES ATTORNEY'S OFFICE

20 FOR THE DEFENDANT: ATTORNEY AT LAW

25 OFFICIAL COURT REPORTER: SUMMER FISHER, CSR, CRR

1 SAN JOSE, CALIFORNIA JUNE 21, 2010

3 (WHEREUPON, COURT CONVENED AND THE

4 FOLLOWING PROCEEDINGS WERE HELD:)

5 THE CLERK: CALLING CASE NUMBER 08-00938.

6 UNITED STATES V. JAMIE HARMON.

7 MR. FONDO: GOOD AFTERNOON, YOUR HONOR.

8 GRANT FONDO FOR THE UNITED STATES.

9 MR. CHENG: ALONG WITH RICHARD CHENG.

10 MR. VERTNER: VICTOR VERTNER APPEARING

11 FOR AND WITH MS. HARMON; SHE IS PRESENT.

12 THE COURT: GOOD AFTERNOON.

13 WE ARE HERE NOW IN THIS CASE ON A FINAL

14 PRETRIAL CONFERENCE. I HAVE A SERIES OF MOTIONS IN

15 LIMINE THAT I TOOK A PRELIMINARY LOOK AT AND MAYBE

16 I COULD GET A LITTLE BIT OF EDUCATION ABOUT THOSE.

17 I ACTUALLY DON'T SEE MY LIST FILED, I

18 THOUGHT I HAD IT IN THE OTHER EVENT. THE OTHER

19 ISSUE I WANTED TO RAISE WITH YOU ALL HAS TO DO WITH

20 OUR SCHEDULE. WE ARE SET TO START THIS TRIAL NOW

21 ON JULY 7TH, THE JURY SELECTION. AT THE TIME I

22 PICKED THAT DATE, I HAD CONFLICTING MATTERS. THERE

23 WAS ANOTHER CASE THAT WAS ESTIMATED TO TAKE THREE

24 TIMES AS LONG AS IT ACTUALLY TOOK.

25 SO I NOW HAVE A PERIOD OF TIME AVAILABLE

1 TO ME, AND I ACTUALLY DON'T SEE THE ADDITIONAL

2 CALENDAR THAT I THOUGHT WAS IN THIS FILE SHOWING ME

3 THE EXTRA DATES BUT LET ME LOOK IN ONE OTHER PLACE

5 PRESENTLY I HAVE AVAILABLE THE WEEK OF

6 THE -- STARTING TUESDAY THE 29TH. SO IF YOU WERE

7 AVAILABLE TO ME AND COULD START TRIAL WE COULD

8 ACTUALLY SUMMON A JURY AND PICK A JURY THE 29TH.

9 WE WOULD TAKE A HIATUS FOR THE HOLIDAY IN

10 CASE WE HAD JURORS WHO WERE TRAVELLING FRIDAY THE

11 2ND AND WOULD RETURN, BUT THAT WOULD GIVE YOU A

12 WEEK OF TIME THAT OTHERWISE WAS UNAVAILABLE IF YOU

13 CAN TAKE ADVANTAGE OF THAT; THAT'S ONE OF THE

15 IN ANY EVENT, I WOULD ALSO ASK YOU TO

16 LOOK AT YOUR CALENDARS TO SEE IF YOU COULD USE

17 TUESDAY JULY 6TH. THE CONFLICTS THAT I HAD ARE

18 GONE AWAY SO WE COULD MOVE YOU UP ONE DAY SO THAT

19 INSTEAD OF TRYING THE CASE WEDNESDAY, THURSDAY,

20 FRIDAY OF THAT WEEK, WE COULD TRY YOU TUESDAY

21 THROUGH FRIDAY OF THAT WEEK AND AVOID PERHAPS GOING

22 INTO THE WEEK OF THE 19TH.

23 I INVADED A LITTLE BIT OF MY OWN ANNUAL

24 LEAVE FOR THE PURPOSES OF THE TRIAL. I'M STILL

25 CONTENT TO DO THAT IF I CAN'T WORK OUT A DIFFERENT

1 SCHEDULE WITH YOU ALL, BUT I WANTED TO SEE WHAT

2 YOUR AVAILABILITIES WERE FOR THAT PERIOD OF TIME.

3 SO HOW ARE YOUR CALENDARS LOOKING?

4 MR. VERTNER: WELL, YOUR HONOR, MY

5 CALENDAR I HAVE MATTERS ON THE 29TH AND THE 30TH

6 AND THE 1ST.

7 THE COURT: SO YOU ARE NOT AVAILABLE TO

8 ME THE 29TH, 30TH OR JULY 1ST?

9 MR. VERTNER: WITHOUT -- NO. WELL, I'M

10 NOT -- I MEAN, I WOULD HAVE TO CANCEL OTHER CASES