Hearing on Proposed Impeachment of Alan Eisenman
48 linesSAN JOSE, CALIFORNIA NOVEMBER 15, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:37 A.M.)
(JURY OUT AT 8:37 A.M.)
JUDGE DAVILA: GOOD MORNING EVERYONE. WE'RE BACK ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. WE'RE OUTSIDE OF THE PRESENCE OF THE JURY. GOOD MORNING. I HOPE EVERYONE HAD A GOOD WEEKEND. I JUST WANTED TO TOUCH BASE, AS I SAID LAST WEEK, JUST TO DO A SCHEDULING CHECK AND SEE. LET'S SEE, WE HAVE MR. EISENMAN ON. I THINK, MR. DOWNEY, YOU'RE CONTINUING WITH YOUR CROSS OF HIM TODAY, THIS MORNING.
MR. DOWNEY: YES, SIR.
JUDGE DAVILA: AND WE'LL BE IN SESSION JUST IN THE MORNING. AND I WONDER IF WE COULD MAYBE GO UNTIL 1:00 O'CLOCK. I HAVE A 1:30 CALENDAR. I WAS THINKING IF WE COULD GO UNTIL 1:00 O'CLOCK, WE CAN CAPTURE AS MUCH EVIDENCE AS WE CAN, AND THEN TOMORROW AT 9:00. SO LET ME TURN TO YOU AND ASK YOU SCHEDULING. WHAT -- DO YOU THINK WE'LL FINISH WITH THIS WITNESS THIS MORNING?
MR. DOWNEY: I WOULD EXPECT SO, YOUR HONOR.
JUDGE DAVILA: OKAY.
MR. DOWNEY: I THINK BETWEEN THE PARTIES, THAT SHOULD BE ENOUGH TIME TO FINISH HIM. IF NOT, IT WOULD BE AN HOUR TO HOUR SOMETHING. BUT I WOULD THINK THAT WE WILL.
JUDGE DAVILA: OKAY. GREAT. MR. LEACH? MR. BOSTIC? ANYTHING TO ADD?
MR. BOSTIC: YOUR HONOR, ONLY TO AGREE ON MR. EISENMAN. I DON'T EXPECT LENGTHY REDIRECT, SO I THINK WE SHOULD BE ABLE TO FINISH HIM AS WELL.
JUDGE DAVILA: OKAY. AND THEN MAYBE WE'LL GET ANOTHER WITNESS STARTED, OR AT LEAST INTRODUCED THIS MORNING? THERE'S A POSSIBILITY OF THAT?
MR. LEACH: YES, YOUR HONOR, WE HAVE ANOTHER WITNESS READY TO GO.
JUDGE DAVILA: OKAY. ALL RIGHT. GREAT. ANYTHING ELSE THEN THAT YOU THINK WE SHOULD TALK ABOUT?
MR. BOSTIC: JUST ONE MATTER BRIEFLY, YOUR HONOR.
JUDGE DAVILA: SURE.
MR. BOSTIC: THANK YOU, YOUR HONOR. AS TO THE WITNESS CURRENTLY ON THE STAND, HE HAD AN INTERACTION WITH THE NATIONAL ASSOCIATION OF SECURITIES DEALERS IN 2000, AND IT RELATED TO, I BELIEVE, TWO ORDERS THAT THIS WITNESS HAD PLACED. I'M NOT PRIVY TO ALL OF THE MATERIALS FROM THAT INVESTIGATION, OR ANY OF THEM THAT AREN'T PUBLICLY AVAILABLE, BUT I UNDERSTAND THAT THE MATTER RESULTED IN A FINE TO THE WITNESS AND A SEVEN DAY SUSPENSION. I ASKED THE DEFENSE WHETHER MR. DOWNEY INTENDED TO GET INTO THIS ON CROSS-EXAMINATION, AND HE SAID POSSIBLY. SO I WANTED TO RAISE IT WITH THE COURT. WE DON'T SEE IT AS PROPER IMPEACHMENT IN THIS CASE. THIS WAS MORE THAN 20 YEARS AGO. THIS OBVIOUSLY WAS NOT A CRIMINAL CONVICTION, AND WE DON'T THINK IT'S SUFFICIENTLY PROBATIVE OF HIS CREDIBILITY AND CERTAINLY HAS NO RELATION TO THE FACTS OF THIS CASE.
JUDGE DAVILA: OKAY. ALL RIGHT. THANK YOU. MR. DOWNEY, GOOD MORNING.
MR. DOWNEY: HOW ARE YOU?
JUDGE DAVILA: WELL, THANKS.
MR. DOWNEY: THANK YOU. I TOLD MR. BOSTIC, I DON'T INTEND TO INTRODUCE THE DOCUMENTS WHICH REFLECT, YOU KNOW, THE PAST ISSUES THAT MR. EISENMAN HAS HAD, AND I DON'T INTEND TO INTRODUCE THE DOCUMENTS FOR PURPOSES OF IMPEACHING HIM OR SUGGESTING THAT HE ENGAGES IN A PATTERN OF THIS BEHAVIOR. IT'S POSSIBLE, DEPENDING ON WHAT HE CONCEDES ABOUT HIS KNOWLEDGE OF RESTRICTIONS ON THE ABILITY OF A SHAREHOLDER OR A POTENTIAL INVESTOR TO OBTAIN INSIDE INFORMATION, THAT AN EXCHANGE ABOUT THE KNOWLEDGE HE RECEIVED AS A RESULT OF HIS PAST ISSUES COULD COME UP IN THE EXCHANGE. BUT THAT WAS THE ONLY PURPOSE FOR WHICH IT WAS INTRODUCED.
JUDGE DAVILA: AND HOW WOULD THAT -- WOULD YOU ASK HIM THE STANDARD IMPEACHMENT QUESTIONS, "ISN'T IT A FACT THAT," OR SOMETHING LIKE --
MR. DOWNEY: YES, YES.
JUDGE DAVILA: I SEE. WELL, IF IT WERE A CRIMINAL CONVICTION, IT'S 20 YEARS OLD. I WOULD DOUBT IT WOULD BE A CRIMINAL CONVICTION IT SOUNDS LIKE.
MR. DOWNEY: IT WOULDN'T. AND I DON'T THINK, IN A SQUARE WAY, THE FACT OF THE SUSPENSION THAT WAS VISITED ON HIM OR THE FINE THAT WAS VISITED ON HIM IS ADMISSIBLE. I THINK ALL THAT IS REALLY ADMISSIBLE IS SOMETHING WHICH EITHER REFRESHES HIM AS TO THE FACT THAT HE HAD KNOWLEDGE OF THESE RESTRICTIONS, WHICH WE WOULD NEED TO EXPRESS IN FRONT OF THE JURY, OR A QUESTION WHICH ASKS HIM IF HE'S EVER BEEN MADE AWARE, YOU KNOW, THROUGH A COMMUNICATION OF SOME KIND THAT THERE ARE SOME RESTRICTIONS. THAT'S THE ONLY WAY. IT REALLY IS NOT DESIGNED TO SHOW THAT PATTERN.
MR. BOSTIC: YOUR HONOR, I'M STILL NOT SEEING THE CONNECTION BETWEEN THAT CONTEXT AND THIS ONE. IN THAT CONTEXT HE WAS, AS I UNDERSTAND IT, WORKING AS A TRADER TRADING IN PUBLIC SECURITIES. HERE HE'S AN INVESTOR IN A PRIVATE COMPANY. SO I'M NOT SEEING THE CONNECTION BETWEEN THE INFORMATION RESTRICTION RULES THAT WOULD APPLY IN BOTH OF THOSE CASES. EVEN IF THERE WAS SOME OVERLAP, THOUGH, IT SOUNDS LIKE MR. DOWNEY'S PURPOSE COULD BE ACCOMPLISHED WITHOUT ANY REFERENCE TO THE PENALTIES THAT WERE IMPOSED 20 YEARS AGO.
MR. DOWNEY: I THINK THAT'S FAIR, YOUR HONOR.
JUDGE DAVILA: I DON'T THINK YOU -- WHAT I THOUGHT I HEARD YOU SAY, MR. DOWNEY, IS THAT YOU DON'T WANT TO GO INTO THAT.
MR. DOWNEY: I DON'T, THAT'S CORRECT.
JUDGE DAVILA: YOU'RE GOING TO ASK HIM IF HE HAS KNOWLEDGE OF RESTRICTIONS, REGULATIONS IN TRADING, AND WHAT THOSE REGULATIONS MEAN TO A TRADER, ET CETERA.
MR. DOWNEY: THAT'S RIGHT. OR TO, YOU KNOW, INVESTORS OR PEOPLE WHO HAVE ACCESS TO INFORMATION THAT OTHER INVESTORS OR POTENTIAL INVESTORS DON'T HAVE.
JUDGE DAVILA: AND YOU'RE NOT TRYING TO -- AND PARDON ME FOR PUTTING IT THIS WAY, YOU'RE NOT TRYING TO SET HIM UP TO ALLOW THE ANSWER TO COME IN, "ISN'T IT A FACT THAT"? YOU'RE NOT TRYING TO SET THAT UP?
MR. DOWNEY: NO. I EXPECT, BASED ON SOME OF WHAT WE SAW FRIDAY, THAT HE COULD DENY KNOWLEDGE, WHICH I THINK HE CLEARLY HAS.
JUDGE DAVILA: LET ME JUST SAY THEN IT WOULD BE A LITTLE TOUCHY ABOUT HOW TO IMPEACH HIM ON THAT, AND SO I WOULD ASK YOU TO BEAR CAUTION. I THINK MR. BOSTIC'S POINT IS CORRECT, AND I THINK YOU AGREE, IT'S IMPROPER FOR THE JURY TO HEAR THAT HE HAD THIS, WHATEVER IT IS, A VIOLATION OF ANY KIND.
MR. DOWNEY: I DON'T THINK -- I'M AWARE OF THAT.
JUDGE DAVILA: RIGHT.
MR. DOWNEY: AND I THINK I'M JUST CONCERNED ABOUT THE SCOPE OF WHAT THE WITNESS WILL ACKNOWLEDGE. SO THIS STRIKES ME AS AN ISSUE THAT SHOULDN'T COME UP IF THIS WITNESS HAS HAD SEVERAL MEETINGS WITH THE GOVERNMENT AND DISCUSSED THIS ISSUE, BUT IT IS ALWAYS POSSIBLE.
JUDGE DAVILA: OKAY.
MR. BOSTIC: THAT WOULD BE FINE, YOUR HONOR. THANK YOU.
JUDGE DAVILA: THANK YOU.
MR. DOWNEY: THANK YOU.
JUDGE DAVILA: ALL RIGHT. WELL, WE'LL TAKE OUR BREAK NOW UNLESS THERE'S ANYTHING ELSE FROM EITHER SIDE? GREAT. ALL RIGHT. AND WE HAVE -- A MOTION WAS FILED I THINK OVER THE WEEKEND, MAYBE IT WAS FRIDAY, BY THE DEFENSE TO CONSIDER SOME EVIDENCE. I THINK WE'RE TO DISCUSS THAT TOMORROW MORNING I THINK IS WHAT MS. SAHARIA SAID IN HER PAPERS. THERE'S A YOUNG MAN RISING BEHIND YOU.
MR. DOWNEY: I THINK THAT'S RIGHT, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. IS THAT RIGHT?
MR. BOSTIC: THAT'S FINE, YOUR HONOR. THANK YOU.
JUDGE DAVILA: YEAH, LET'S DO THAT. I WAS THINKING ABOUT MAYBE WE COULD DO THIS AFTERNOON, BUT LET'S, LET'S TALK ABOUT IT TOMORROW MORNING. OKAY. THANK YOU.
(RECESS FROM 8:44 A.M. UNTIL 9:07 A.M.)
(JURY IN AT 9:07 A.M.)