Pretrial Motion Ruling and Trial Administration
119 linesSAN JOSE, CALIFORNIA SEPTEMBER 8, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:35 A.M.)
(JURY OUT AT 8:35 A.M.)
JUDGE DAVILA: LET'S GO ON THE RECORD IN 18-258, UNITED STATES VERSUS ELIZABETH HOLMES. LET ME FIRST CAPTURE THE APPEARANCES OF THE PARTIES, PLEASE. WHO APPEARS FOR THE GOVERNMENT?
MR. LEACH: GOOD MORNING, YOUR HONOR. ROBERT LEACH ON BEHALF OF THE UNITED STATES. I'M JOINED BY JEFF SCHENK, JOHN BOSTIC, KELLY VOLKAR, SPECIAL AGENT ADDY HERNANDEZ, AND ALSO JUST BEHIND COUNSEL TABLE IS OUR PARALEGAL LAKISHA HOLLIMAN.
JUDGE DAVILA: THANK YOU. GOOD MORNING. THANK YOU, ALL OF YOU. WHO APPEARS FOR THE DEFENSE?
JUDGE DAVILA: I DID, THANK YOU.
MR. WADE: LANCE WADE APPEARING FOR MS. HOLMES. WITH ME IS MY PARTNER, KEVIN DOWNEY, AND KATIE TREFZ. MS. SAHARIA IS BACK THERE, ALONG WITH MR. CLINE. MS. HOLMES IS PRESENT IN THE COURTROOM THIS MORNING.
JUDGE DAVILA: GOOD MORNING. THANK YOU EVERYONE. WE ARE OUTSIDE OF THE PRESENCE OF THE JURY. THE JURY IS BEING BROUGHT UP NOW, AND I JUST WANTED TO HAVE SOME DISCUSSIONS ABOUT SOME MATTERS. FIRST OF ALL, THERE WAS A MOTION FILED. WE'VE COME TO DOCKET 1000 IN THIS CASE, AND THAT WAS FILED, I BELIEVE IT WAS MONDAY, LABOR DAY, AT 8:03 A.M. AS I CHECKED THE DOCKET. THIS WAS A DEFENSE MOTION REGARDING EXCLUDING CERTAIN TESTIMONY OF POTENTIAL WITNESSES BASED ON A REPRESENTATION FROM THE GOVERNMENT OF WHAT WITNESSES MIGHT BE CALLED THIS WEEK TO TESTIFY. I RECEIVED THAT. I ASKED THE GOVERNMENT TO PROVIDE ANY OPPOSITION OR RESPONSE THAT THEY WISHED. I HAD THEM DO THAT BY 4:00 P.M. YESTERDAY. I RECEIVED THEIR RESPONSE AND OPPOSITION, AND THAT'S OPPOSITION 1004, AND I'VE READ THOSE. I BELIEVE YOU SHOULD HAVE RECEIVED LAST NIGHT, THE COURT ISSUED A BRIEF ORDER IN REGARDS TO THE MOTION, AND IN ESSENCE THE COURT IS DEFERRING, DEFERRING THE REQUEST.
THE COURT DOES FIND, AND I THINK I INDICATED IN MY BRIEF ORDER -- IT WAS A PAGE AND A HALF OR A COUPLE OF PARAGRAPHS -- BUT I THINK I INDICATED THAT THE COURT, WHILE RECOGNIZING THE REASON AS STATED IN THE MOTION FOR EXCLUSION, THE COURT FINDS THAT IT'S PREMATURE. THE COURT NOTES, OF COURSE, THE TRIAL PROCESS CONSISTS OF WITNESSES BEING CALLED TO TESTIFY, THEY'RE PLACED UNDER OATH TO TELL THE TRUTH, AND THEN QUESTIONS ARE POSED TO THE WITNESS. IF A PARTY WISHES TO OBJECT TO A QUESTION, THEY MAY DO SO. IF NECESSARY, THE COURT CAN INQUIRE OF THE PARTIES OF FURTHER INFORMATION OR THE COURT WILL RULE ON THE OBJECTION AT THAT TIME. ALL OF THIS OCCURS, AS WE KNOW, IN FRONT OF AND IN THE PRESENCE OF THE JURY. NOW, OBJECTING BY MOTION OUTSIDE OF THE PRESENCE OF A JURY MAY SEEM TO BE A TOOL TO AFFORD EFFICIENCY, AND IT DOES DO THAT. WHEN WE HAVE OUR PRETRIAL CONFERENCES, THIS IS EXACTLY WHAT HAPPENS AT PRETRIAL CONFERENCES.
THE PARTIES CAN FILE MOTIONS, LODGE OBJECTIONS TO ANTICIPATED EVIDENCE. USUALLY IT'S BLOCKS OF EVIDENCE OR TYPES OF EVIDENCE THAT REALLY DOES ASSIST THE EFFICIENCY OF THE TRIAL. IT GIVES THE PARTIES AN IDEA OF HOW TO PRESENT THEIR CASE WHEN THE COURT FEELS THE APPROPRIATE PRESENTATION OF THE EVIDENCE MIGHT BE AS TO A CERTAIN TYPE STYLE. I THINK YOU HAVE BENEFIT OF DOCKET 798, WHICH IS THE COURT'S RULING ON THE MOTIONS IN LIMINE THAT WE HAD A COUPLE OF DAYS DISCUSSION ON. WHEN WE DO -- AND I'M NOT BEING CRITICAL OF THE DEFENSE, BUT RULING BY MOTION OUTSIDE OF THE PRESENCE OF THE JURY ON CERTAIN TESTIMONY, ANTICIPATED TESTIMONY REGARDING POTENTIAL QUESTIONS THAT MAY BE ASKED BASED ON A 302 OR OTHER EVIDENCE THAT PRESENTS ITSELF DOES CREATE PROBLEMS FOR RULING BECAUSE THERE'S NO CONTEXT. IT'S IN THE ABSTRACT.
AND THE CONTEXTUAL PART OF A QUESTION, THE CONTEXTUAL PART OF THE EVIDENCE AS IT DEVELOPS, YOU ALL KNOW THIS, IS IMPORTANT FOR THE COURT TO UNDERSTAND AND TO RULE APPROPRIATELY ON AN OBJECTION THAT MIGHT COME UP. I EXPECT AND I KNOW THAT ALL OF YOU ARE GOING TO FOLLOW THE RULES OF EVIDENCE. YOU MAY STIPULATE TO EVIDENCE THAT IS RECEIVED, OR YOU MAY OBJECT TO CERTAIN PROCEEDINGS, AND THAT'S PART OF THE TRIAL PROCESS. WHILE THE MOTION AFFORDS SOME EFFICIENCY, AND I APPRECIATE THAT, BUT SOMETIMES THOSE EFFICIENCIES NEED TO TAKE A BACK SEAT TO THE ACTUAL TRIAL PROCESS OCCURRING SO THE COURT CAN UNDERSTAND THE QUESTIONS, UNDERSTAND THE CONTEXT OF IT, AND IT MIGHT BE DEVELOPED BASED A LITTLE BIT MORE THEN ON A 302 OR SOMETHING ELSE. SO WHAT I INDICATED IN MY MOTION, MY ORDER, WAS THAT I THOUGHT THE MOTION WAS PREMATURE. I APPRECIATE THE MOTION BECAUSE IT DID GIVE NOTICE TO THE GOVERNMENT AS TO SOME ANTICIPATED PROBLEMS.
SHOULD THE GOVERNMENT PROVIDE QUESTIONS WITHOUT APPROPRIATE FOUNDATION, FOR EXAMPLE, IT WOULD CERTAINLY GIVE THE COURT AN IDEA OF WHAT POTENTIALLY COULD HAPPEN. SO IT DID SERVE SOME USEFULNESS FOR THAT AND I DO NOT MEAN TO SUGGEST THAT IT WAS NOT USEFUL, NOR TO BE CRITICAL OF IT. WHAT I WILL SAY IS THAT THE TIMING OF IT WAS SOMEWHAT PROBLEMATIC. THE COURT WAS CLOSED ON LABOR DAY, IT WAS A HOLIDAY. OF COURSE THAT DOES NOT MEAN THE COURT WAS NOT WORKING. I'M HEARTENED TO SEE THAT COUNSEL WAS WORKING ON LABOR DAY AND THEY FILED IT AT 8:03 A.M. AND I RECEIVED IT AND WE DID THE WORK THAT WE NEEDED TO DO ON IT.
JUDGE DAVILA: WE HAD DISCUSSION I THINK A WEEK OR SO AGO ABOUT TIMING OF THIS. I THINK MR. BOSTIC WAS INVOLVED IN THAT CONVERSATION FROM THE GOVERNMENT, AND WE WERE TALKING ABOUT WHEN SHOULD, WHEN SHOULD THE GOVERNMENT GIVE NOTICE. I THINK WE SETTLED ON THURSDAY AFTERNOON IF I'M NOT MISTAKEN. AND THEN I THOUGHT WE HAD A FILING DEADLINE OF NOON, I THOUGHT THAT WAS BY FORWARD ANY MOTIONS, SATURDAY NOON. AND I THOUGHT THAT WOULD AFFORD OR SPLIT UP THE WEEKEND EVENLY. AND I KNOW MR. DOWNEY HAD SOME THOUGHTS ABOUT THAT BECAUSE FRIDAY WE'RE NOT IN SESSION, AND I THINK THAT MR. DOWNEY WAS THINKING THAT, WELL, THAT GIVES US AN EXTRA BUFFER, THE GOVERNMENT HAS FRIDAY TO LOOK AT THIS. WHAT I WANT TO AVOID, AND WHAT I CONTINUE TO SEEK TO AVOID, IS HAVING TO RULE ON A MOTION THE MORNING OF OUR TRIAL, OR SHORTLY BEFORE, WHICH DOES CREATE SOME IMPEDIMENT TO THE EFFICIENT PROCESS OF THE TRIAL. SO I'M GOING TO ASK COUNSEL TO BEAR THAT IN MIND, PLEASE. YOU DO WHAT YOU NEED TO DO, OF COURSE.
I'M NOT AT ALL SUGGESTING THAT YOU DON'T DO WHAT YOU NEED TO DO TO PROPERLY REPRESENT EACH SIDE. BUT JUST BEAR IN MIND, IF YOU WOULD, PLEASE, THE SCHEDULE THAT WE TALKED ABOUT. I WANT TO TALK ABOUT EXHIBITS FOR JUST A MOMENT ALSO. WHAT YOU WILL RECEIVE, AND I'VE TALKED WITH OUR I.T. PEOPLE ABOUT THE EXHIBITS, AND WHAT I'M GOING TO DO -- YOU'LL GET AN ORDER. I'LL POST AN ORDER LATER TODAY ABOUT THIS. IT'S A VERY BRIEF ORDER. AS TO EXHIBITS, THE EXHIBITS THAT WILL BE SUBMITTED, THAT IS, EXHIBITS THAT ARE RECEIVED INTO EVIDENCE WILL BE HOSTED BY THE COURT FOR PUBLIC VIEW. COUNSEL WILL NEED TO PRODUCE CORRECTED ADMITTED EXHIBIT LISTS EACH DAY NO LATER THAN 4:00 P.M. AND YOU'LL GET A COPY OF THIS ORDER. I'M JUST READING IT INTO THE RECORD NOW FOR YOU. IN DOING SO, WHAT I EXPECT COUNSEL WILL DO IS THAT THEY WILL HAVE REVIEWED THE SUBMISSION FOR ACCURACY AND HAVE REVIEWED WITH MS. HOLMES FOR HER REVIEW AND CONSENT, THAT IS, THE DEFENSE WILL DO THAT WITH ALL OF THESE EXHIBITS.
THE PARTIES SHOULD MAINTAIN A CONTINUOUS LOG THAT THE ENTIRETY -- SUCH THAT THE ENTIRETY OF THE EXHIBITS CAN BE MAINTAINED BY EITHER SIDE, SO YOU HAVE A RUNNING LOG. BUT WHAT WE'RE GOING TO DO IS THAT I'M GOING TO TASK THE PARTIES WITH MAINTAINING A CONTINUOUS LOG SUCH THAT THE ENTIRETY OF THE EXHIBITS AT THE CONCLUSION OF THE EVIDENCE PRIOR TO THE JURY RECEIVING THE ADMITTED EXHIBITS WILL BE ON A THUMB DRIVE, OR WHATEVER MEMORY DEVICE THAT YOU HAVE. THE FILES MUST BE ORGANIZED AND LABELLED PROPERLY IN ORDER TO BE CLEAR TO THE PUBLIC. SO THEY SHOULD BE ENTITLED WHAT THEY MIGHT BE, A PHOTOGRAPH OF, A DEED OF SALE, WHATEVER IT IS THAT SHOULD BE PROPERLY IDENTIFIED. THEY SHOULD BE IN FOLDERS THAT ARE NAMED PROPERLY, SUCH AS DEFENSE EXHIBIT 1, PROSECUTION EXHIBIT 300 OR SUCH. COUNSEL WILL PLACE EACH DAY'S FILE ON A SINGLE NEWLY FORMATTED, THAT MEANS A COMPLETELY ERASED USB DRIVE OR WHATEVER MEMORY DEVICE THAT YOU HAVE.
NO OTHER FILES MAY BE PRESENT ON THE DRIVES BESIDES THOSE APPROVED TO BE SUBMITTED BY THE JUDGE ON THAT DAY. SO IT'S A CLEAN THUMB DRIVE SO THAT THEY CAN BE ACCURATELY DOWNLOADED. PREVIOUSLY SUBMITTED FILES MUST NOT BE PRESENT ON THIS. SO I WANT A CLEAN DRIVE. I'M TRYING TO ELIMINATE ANY TECHNICAL ISSUES THAT MIGHT ARISE. COUNSEL WILL ISSUE THE DRIVE TO MS. KRATZMANN IN THE COURTROOM BY 4:00 P.M. EACH DAY, AND THEN SHE WILL COPY THE CONTENTS TO A PREDETERMINED LOCATION ON THE COURT'S NETWORK, AND THEN SHE'LL RETURN THE DRIVE TO COUNSEL. OUR I.T. DEPARTMENT WILL ENSURE THAT THE FILES ARE VIEWABLE TO THE PUBLIC. LATER THAT DAY, I CAN'T TELL YOU WHAT THE TIMING IS OF THAT, AND THERE'S AN ADDRESS THAT WILL BE PROVIDED IN THE ORDER THAT I GIVE YOU AND IT HAS A -- IT MIGHT BE A HOT LINK SUCH THAT PARTIES CAN CONNECT TO IT. THIS WILL ALSO -- I JUST WANT TO TELL YOU, THIS WILL ALSO ENHANCE MS. KRATZMANN'S ABILITY TO KEEP THE EXHIBIT LIST RUNNING FOR HER. THAT'S WHY I'M ASKING THAT IT BE ACCURATE. AND WHEN COUNSEL PROVIDE THAT THUMB DRIVE, YOU ARE ATTESTING TO ITS ACCURACY. SO WHEN THE JURY GOES IN TO DELIBERATE THE CASE, THEY WILL HAVE, BASED ON YOUR REPRESENTATIONS, FULL, ACCURATE EXHIBIT LISTS SUCH THAT CAN BE ACKNOWLEDGED BY THEM AND ACCESSED BY THEM. ANY QUESTIONS ABOUT THAT?
MR. LEACH: NO, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. AND AS I SAID, I'LL HAVE A BRIEF ORDER UP LATER THIS AFTERNOON THAT DESCRIBES THAT PROCESS. WE ARE, AS I UNDERSTAND ABOUT THE BINDERS, THEY'RE COMING IN FRIDAY, IF I'M NOT MISTAKEN, AND WE'LL HAVE THE BINDERS AND WE'LL GIVE BINDER PAPER TO THE JURORS AND THEY'LL HAVE THAT ACCESSIBLE TODAY AND THEY CAN FILL IN THE BINDERS. IS THAT HOW THE PARTIES HAVE AGREED TO DO IT? YOU'RE GOING TO SUBMIT THE PHOTOS WITH THOSE WITNESSES WHO HAVE TESTIFIED AT THE END OF EACH WEEK?
MR. BOSTIC: THAT'S CORRECT, YOUR HONOR.
JUDGE DAVILA: GREAT. I DO WANT TO ASK A QUESTION ABOUT TIMING FOR TODAY'S PURPOSES. SHOULD WE TAKE A BREAK THEN AT 11:00 A.M., MR. DOWNEY? IS THAT A TIME -- MR. LEACH, IS THAT A TIME THAT IS APPROPRIATE? AND IF SO, I GUESS THE NEXT QUESTION I WAS GOING TO ASK IS THAT IF YOU CAN JUST GIVE ME AN IDEA OF THE TIMING OF YOUR OPENINGS.
MR. LEACH: YOUR HONOR, THAT TIMING MAKES SENSE TO THE GOVERNMENT. I ANTICIPATE THE GOVERNMENT'S OPENING WILL BE SOMEWHERE BETWEEN 45 AND 50 MINUTES. I DON'T KNOW ABOUT THE DEFENSE, BUT 11:00 O'CLOCK I THINK WOULD BE CONSISTENT WITH THAT.
JUDGE DAVILA: OKAY. ALL RIGHT. THANK YOU.
JUDGE DAVILA: OKAY.
MR. WADE: WE KNOW THE COURT HAS TO INSTRUCT THE JURY AND THEN THE COURT WILL START. MAYBE WE CAN PLAY IT A LITTLE BIT BY EAR, BUT THAT GENERAL TIMING SEEMS GOOD.
JUDGE DAVILA: OKAY.
MR. WADE: I WOULD ALSO ASK, AS A HOUSEKEEPING MATTER, AS THE COURT KNOWS THIS IS A VERY SMALL COURTROOM -- COURTHOUSE, AND WE'VE BUMPED INTO, DURING THE JURY SELECTION PROCESS AND ENTERING THE BUILDING AND THE LIKE, SOME OF OUR JURORS. WE, OF COURSE, LOOK AWAY AND REMAIN SILENT. BUT IT WOULD BE MUCH APPRECIATED IF THE COURT COULD GIVE THE STANDARD INSTRUCTION TO THE JURORS THIS MORNING THAT WE'RE NOT TRYING TO OFFEND THEM OR BE RUDE BY NOT GREETING THEM.
JUDGE DAVILA: THANK YOU. THAT IS, AS YOU SAID, PART OF MY STANDARD INSTRUCTIONS IS TO INFORM THE JURY THAT IT'S A SMALL COURTHOUSE. REGRETTABLY, YOU KNOW THE HISTORY, WE TRIED TO BUILD A COURTHOUSE SEVERAL YEARS AGO. BUT I WILL INFORM THE JURY OF THAT. THAT'S A STANDARD INSTRUCTION, PRELIMINARY INSTRUCTION THAT I GIVE SUCH THAT THE JURY MAY SEE THE PARTIES IN AN ELEVATOR, ON THE STREET, AND IF THE PARTIES SMILE AND LOOK AWAY, DON'T SMILE, DON'T TALK, IT'S NOT BECAUSE YOU'RE RUDE, IT'S BECAUSE YOU'RE FOLLOWING THE RULES OF COURT. YES. THANK YOU. ANYTHING ELSE?
MR. LEACH: YES, YOUR HONOR. DURING THE OPENING STATEMENTS, DO THE PARTIES HAVE THE COURT'S PERMISSION TO REMOVE OUR MASKS FOR OPENING STATEMENT?
JUDGE DAVILA: YES. THANK YOU. YES, YOU DO. THANK YOU.
MR. LEACH: OKAY. AND MY UNDERSTANDING IS THAT THE EXAMINING COUNSEL FOR WITNESS CAN ALSO TAKE OFF THEIR MASK?
JUDGE DAVILA: THAT'S RIGHT.
MR. LEACH: OKAY. THANK YOU.
JUDGE DAVILA: WHAT I INTEND TO DO AFTER I READ THE PRELIMINARY INSTRUCTIONS, I'LL OF COURSE TURN TO THE GOVERNMENT. IF THEY HAVE AN OPENING STATEMENT, I'LL INVITE THE JURY TO STAND UP FOR A MOMENT AND STRETCH THEIR LEGS BEFORE YOU BEGIN THAT PROCESS. SO THERE MIGHT BE A LITTLE BIT OF A BREAK. WE'LL SEE WHAT OUR TIMING IS AND THEN WE'LL GO ACCORDINGLY. AS I SAID, WE'LL TAKE A BREAK AT 11:00. MAYBE WE'LL COME BACK AT 11:30 OR SO, AND WE'LL SEE IF MAYBE WE CAN GET A WITNESS ON TODAY. WE'LL SEE. OKAY. ANYTHING FURTHER?
MR. LEACH: NO, YOUR HONOR. THANK YOU.
JUDGE DAVILA: ALL RIGHT. THANK YOU VERY MUCH. I'LL STEP DOWN NOW AND I THINK MS. KRATZMANN WILL BRING OUR JURY IN SHORTLY. ALL RIGHT. THANK YOU.
(RECESS FROM 8:51 A.M. UNTIL 9:08 A.M.)
JUDGE DAVILA: WE'RE BACK ON THE RECORD. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN. OUR JURY IS NOT PRESENT. A COUPLE OF THINGS AS TO OUR JURY. WE ARE STILL AWAITING THE ARRIVAL OF ALTERNATE NUMBER 3, AND THEY'RE CHECKING WITH THE CLERK'S OFFICE -- THE CLERK'S OFFICE IS CHECKING WITH HER. I JUST HAD COMMUNICATION FROM MS. KRATZMANN, WHO WAS APPROACHED BY JUROR NUMBER 7, AND JUROR NUMBER 7 INFORMED MS. KRATZMANN THIS MORNING THAT WHEN SHE, JUROR NUMBER 7, WENT TO WORK OVER THE WEEKEND, SHE WAS INFORMED THAT HER EMPLOYER WILL NOT PAY HER FOR JURY SERVICE. THIS IS THE FIRST SHE HEARD OF IT. SHE REPORTED TO MS. KRATZMANN. JUROR NUMBER 7 INDICATED THAT SHE NEEDS TO WORK. SHE HELPS HER MOTHER WITH FINANCIAL SUPPORT, AND SHE EXPRESSED A FINANCIAL HARDSHIP AS TO SITTING AS A JUROR IN THIS CASE. OF COURSE WE ALL TALKED WITH JUROR NUMBER -- EXCUSE ME, JUROR NUMBER 7 SOMETIME LAST WEEK. MY THOUGHT WAS TO BRING HER IN NOW, AND WE CAN TALK WITH HER ABOUT THIS HARDSHIP. I'LL ALLOW COUNSEL TO ASK QUESTIONS IF YOU HAVE SOME. WE'LL EXCUSE HER AND THEN I'LL TALK WITH COUNSEL. SO COULD YOU BRING HER IN, PLEASE?
COURT CLERK: YES, YOUR HONOR.
JUDGE DAVILA: THANK YOU.
(JUROR NUMBER 7 PRESENT.)
JUROR: HI. GOOD MORNING.
JUDGE DAVILA: JUROR NUMBER 7 IS NOW WITH US. GOOD MORNING, MS. HERNANDEZ-PEREZ. HOW ARE YOU?
JUROR: GOOD. HOW ARE YOU?
JUDGE DAVILA: I'M WELL, THANK YOU. MS. KRATZMANN, MY COURTROOM DEPUTY, TOLD ME THAT YOU HAD TALKED WITH HER ABOUT YOUR JURY SERVICE THIS MORNING.
JUROR: YEAH.
JUDGE DAVILA: COULD YOU TELL US A LITTLE BIT ABOUT YOUR THOUGHTS HERE?
JUROR: YEAH. SO MY JOB BARELY TOLD ME --
JUDGE DAVILA: JUST A SECOND. I WANT TO MAKE SURE THAT MICROPHONE -- IS THAT ON?
COURT CLERK: TRY AGAIN.
JUROR: SO MY JOB JUST INFORMED ME THAT THEY DON'T PAY FOR THE JURY SERVICE, AND I HAVE TO KEEP WORKING BECAUSE I HAVE TO HELP MY MOM PAY BILLS AND STUFF LIKE THAT. AND, WELL, THEY JUST TOLD ME LAST MINUTE. I THOUGHT THEY WOULD HAVE TOLD ME EARLIER BEFORE I GOT SELECTED SO I WOULD HAVE BEEN ABLE TO, LIKE, TELL YOU. BUT THEY JUST TOLD ME.
JUDGE DAVILA: I'M SORRY. DO YOU WORK FULL-TIME? PART-TIME?
JUROR: I THINK IT'S PART-TIME.
JUDGE DAVILA: UH-HUH, I SEE.
JUROR: YEAH.
JUDGE DAVILA: HAVE YOU TALKED, OR DO YOU THINK IT WOULD BE BENEFICIAL TO TALK WITH YOUR EMPLOYER TO SEE IF YOU COULD ADJUST YOUR HOURS? AS YOU KNOW, WE'RE GOING TO END AT 2:00 O'CLOCK, SO YOU HAVE SOME TIME IN THE AFTERNOON.
JUROR: WELL, I USUALLY GET, LIKE, MIDDAY SHIFTS AND I ALREADY TRIED TO, BUT THEY DON'T REALLY -- THE OTHER PEOPLE LIKE WORKING ALSO. I WORK AT CUSTOMER SERVICE, SO WE HAVE OUR, LIKE, SPECIFIC SCHEDULE ALREADY USUALLY.
JUDGE DAVILA: I SEE. HAVE YOU TALKED WITH YOUR EMPLOYER ABOUT MODIFYING YOUR SCHEDULE, YOUR WORK SCHEDULE, SO THAT YOU COULD WORK IN THE AFTERNOONS, FROM 3:00 O'CLOCK OR SOMETHING ON? WOULD THAT BE SOMETHING THAT YOU COULD DO, DO YOU THINK?
JUROR: I DON'T THINK SO. THEY ALREADY USUALLY HAVE PEOPLE THAT CLOSE, LIKE, REGULARLY.
JUDGE DAVILA: I SEE. HAVE YOU TALKED TO YOUR EMPLOYER AT ALL ABOUT THAT, ABOUT MODIFYING YOUR SCHEDULE?
JUROR: WELL, I TALKED TO THEM THAT I WAS SELECTED AND STUFF, BUT THEY DIDN'T REALLY, LIKE, SAY ANYTHING.
JUDGE DAVILA: I SEE. OTHER THAN THEY WON'T PAY YOU?
JUROR: YEAH, OTHER THAN THEY WON'T PAY ME.
JUDGE DAVILA: SURE. AND WE WORK -- WE'LL BE IN SESSION AT LEAST THREE DAYS A WEEK.
JUROR: YEAH.
JUDGE DAVILA: WOULD THAT -- MISSING WORK THOSE THREE DAYS A WEEK, WOULD THAT -- IS THAT STILL GOING TO BE A PROBLEM FOR YOU?
JUROR: YEAH. I WORK THOSE. I WORK TODAY, AND I WAS GOING TO WORK ON FRIDAY ALSO.
JUDGE DAVILA: I SEE. IS THERE ANY WAY YOU CAN -- AND I'M SORRY TO PRESS YOU --
JUROR: YEAH.
JUDGE DAVILA: -- WE SPENT SO MUCH TIME TALKING WITH YOU.
JUROR: YEAH.
JUDGE DAVILA: AND YOU WERE SELECTED TO BE A JUROR, AND THAT'S IMPORTANT.
JUROR: UH-HUH.
JUDGE DAVILA: I'M JUST SEEING IF THERE IS ANYTHING YOU COULD DO OR WE COULD DO, SPEAKING WITH YOUR EMPLOYER TO READJUST YOUR SCHEDULE OR CHANGE YOUR SCHEDULE. OR IS THERE SOMETHING CREATIVE THAT YOU THINK YOU COULD DO?
JUROR: WELL, I'M NOT SURE IF THEY WOULD WANT TO LIKE SWITCH ME BECAUSE THERE'S ONLY A COUPLE OF PEOPLE THAT WORK CUSTOMER SERVICE THAT THEY HAVE. SO IT'S KIND OF LIKE WE ALREADY HAVE OUR SCHEDULES SET AND THEY DO IT LIKE A WEEK OR TWO BEFORE ALSO.
JUDGE DAVILA: I SEE. I SEE. AND WHAT IS YOUR NORMAL SHIFT? YOUR REGULAR SHIFT?
JUROR: WELL, IT DEPENDS. SOMETIMES I OPEN, 9:50 TO 3:00, AND THERE'S ALSO LIKE MIDDAY, 12:00 TO 6:00.
JUDGE DAVILA: 12:00 TO 6:00?
JUROR: YEAH, P.M.
JUDGE DAVILA: AND WHAT TIME DOES THE STORE CLOSE?
JUROR: WEEKDAYS, MONDAY THROUGH FRIDAY, AT 9:00, AND THEN FRIDAY AND, LIKE, WEEKENDS IT'S TILL 10:00 OR 9:30.
JUDGE DAVILA: SURE. AND I'M SORRY I KEEP PRESSING THIS, BUT DO YOU THINK IT'S POSSIBLE YOU COULD ASK THEM TO, FOR THE DURATION OF THIS TRIAL, TO GIVE YOU THE EVENING SHIFT? WOULD THAT BE SOMETHING THAT YOU COULD DO? FIRST OF ALL, IS THAT A SHIFT THAT YOU COULD WORK?
JUROR: I DON'T REGULARLY WORK, LIKE, CLOSING THAT MUCH. I MOSTLY DO MORNINGS AND, LIKE, MIDDAY.
JUDGE DAVILA: RIGHT. BUT IF THEY -- IF YOUR EMPLOYER SAID THAT THEY WOULD MOVE YOU TO THE CLOSING, IS THAT SOMETHING THAT YOU COULD DO?
JUROR: I WOULD NEED TO SEE BECAUSE, LIKE, ME AND MY BROTHER SHARE A CAR.
JUDGE DAVILA: I SEE.
JUROR: SO, YEAH, THAT'S ANOTHER --
JUDGE DAVILA: I SEE. I SEE. AND IS YOUR EMPLOYER, IS THAT CLOSE TO YOUR HOME?
JUROR: I LIVE IN SUNNYVALE. IT'S IN MOUNTAIN VIEW.
JUDGE DAVILA: RIGHT. OKAY. OKAY. I'M GOING TO ASK THESE LAWYERS IF THEY HAVE ANY QUESTIONS FOR YOU. MR. SCHENK?
MR. SCHENK: YES, BRIEFLY. WERE YOU PLANNING TO GO INTO WORK TODAY, OR YOU WERE PLANNING TO BE HERE TODAY?
JUROR: WELL, I WAS PLANNING TO GO TO WORK, BUT, YEAH, I HAD TO TELL THEM THAT I MIGHT BE A LITTLE LATE.
MR. SCHENK: WHAT TIME DOES YOUR SHIFT START TODAY?
JUROR: WELL, I THINK IT'S LIKE -- WELL, TODAY IT'S 12:00, I THINK, BUT I'LL PROBABLY HAVE TO CALL AND IT MIGHT TAKE A LITTLE LONGER.
MR. SCHENK: OKAY. THANK YOU. THANK YOU, YOUR HONOR.
MR. DOWNEY: JUST ONE QUESTION. ARE YOU ALSO STILL A STUDENT? I KNOW YOU GRADUATED RECENTLY. DO YOU ALSO HAVE RESPONSIBILITIES AS A STUDENT?
JUROR: WELL, I'M PLANNING TO START, BUT I HAVEN'T SIGNED UP RIGHT NOW.
MR. DOWNEY: THANK YOU, YOUR HONOR.
JUDGE DAVILA: ANYTHING FURTHER?
MR. DOWNEY: NO.
MR. SCHENK: NO. THANK YOU.
JUDGE DAVILA: ALL RIGHT. SO, MS. HERNANDEZ-PEREZ, IS THERE ANY -- DO YOU THINK -- IF I ASKED YOU TO CONTACT YOUR EMPLOYER TO SEE IF THEY COULD ADJUST YOUR SCHEDULE, IS THAT SOMETHING THAT WOULD WORK FOR YOU? OR WOULD IT JUST NOT WORK FOR YOU? I APPRECIATE YOUR CANDOR ON THIS.
JUROR: I DON'T THINK SO. I NEED TO KEEP WORKING TO MAKE MONEY TO HELP MY MOM. SO I WOULD NEED TO WORK AS MANY HOURS AS I CAN GET.
JUDGE DAVILA: OKAY. ALL RIGHT. THANK YOU VERY MUCH. MS. KRATZMANN WILL ESCORT YOU BACK TO THE JURY ROOM. THANK YOU.
JUROR: THANK YOU.
JUDGE DAVILA: YOU'RE WELCOME.
(PROCEEDINGS HELD OUT OF THE PRESENCE OF JUROR NUMBER 7.)
JUDGE DAVILA: ALL RIGHT. THE RECORD SHOULD REFLECT THAT JUROR NUMBER 7 HAS LEFT THE COURTROOM. MR. SCHENK, ANY COMMENTS?
MR. SCHENK: THANK YOU, YOUR HONOR. JUST BRIEFLY. IT CERTAINLY SOUNDS LIKE MS. HERNANDEZ-PEREZ IS EXPRESSING A FINANCIAL HARDSHIP BY REMAINING ON THE JURY. I'M OPTIMISTIC THAT IF THE COURT GAVE HER SOME TIME TO CONTACT HER EMPLOYER, WE MIGHT DISCOVER THAT THERE IS A SHIFT THAT COULD WORK FOR HER, AND IT REALLY, I THINK, WOULD BE THE GOVERNMENT'S PREFERENCE AT THIS POINT TO ASK HER TO PURSUE THAT AT LEAST FOR TODAY, AND THEN MAKE THE DECISION ABOUT EXCUSING HER AFTER SHE HAS AN OPPORTUNITY TO HAVE THAT CONVERSATION. BUT ULTIMATELY WE WOULD DEFER TO THE COURT. IT CERTAINLY SOUNDS LIKE SHE'S EXPRESSED SOME HESITANCY TO MAKING A NEW SHIFT WORK.
JUDGE DAVILA: OKAY. THANK YOU.
MR. DOWNEY: YOUR HONOR, THAT SOUNDS SENSIBLE TO ME. I THINK SHE'S HERE AND PREPARED TO PARTICIPATE TODAY, SO I WOULD SUGGEST THAT SHE CONTINUE TO SERVE THROUGH TODAY AND WE'LL SEE WHAT OTHER OPTIONS ARE AVAILABLE.
JUDGE DAVILA: WELL, THANK YOU BOTH. LET'S DO THAT. LET'S NOT EXCUSE HER AT THIS POINT. WHAT I WILL ASK HER TO DO IS DURING OUR BREAK I'LL ASK HER TO CONTACT HER EMPLOYER AND SEE IF SHE CAN MODIFY FOR TUESDAYS, WEDNESDAYS, FRIDAYS, HER SCHEDULE, WORK SCHEDULE, SUCH THAT SHE CAN REMAIN ON THE JURY HERE. MAYBE THAT WOULD SOLVE THINGS. LET'S SEE WHAT HAPPENS. I APPRECIATE IT. LET'S GIVE IT A SHOT AND SEE WHAT WORKS. OKAY. THANK YOU.
MR. DOWNEY: THANK YOU, YOUR HONOR.
MR. SCHENK: THANK YOU, YOUR HONOR.
JUDGE DAVILA: THANK YOU. I'M INFORMED THAT OUR JURY AND ALTERNATES ARE ALL HERE NOW, SO I'LL ASK MS. KRATZMANN TO BRING THEM IN. IT'S GOING TO BE A MOMENT. AS YOU KNOW, WE HAVE SOME SEATED IN THE FRONT ROW THERE, AND IT WILL TAKE A MOMENT FOR THEM TO GET SEATED AND THEN I'LL SPEAK WITH THEM. WHAT I WILL DO IS ASK EACH OF THEM, AS I SAID I WOULD DO, WHETHER OR NOT -- I'LL MAKE AN INQUIRY AS TO WHETHER OR NOT THEY'VE HEARD, LISTENED TO, OR SEEN ANY MEDIA OR HEARD ANYTHING ABOUT THE CASE, AND I'LL ASK FOR A SHOW OF HANDS AND WE MAY HAVE A CONVERSATION ABOUT THAT. SHOULD, SHOULD IT -- THE NEED ARISE THAT WE NEED TO SPEAK WITH THAT JUROR PRIVATELY, WE'LL DO THAT. I'LL EXCUSE THE BALANCE OF THE JURORS AND WE'LL HAVE A CONVERSATION INDIVIDUALLY WITH THE JUROR DEPENDING ON THE ANSWERS TO THE QUESTIONS. AND THEN, AFTER THAT, AND THEN I THINK I'LL BE PREPARED TO PRELIMINARILY INSTRUCT.
(PAUSE IN PROCEEDINGS.)
(JURY IN AT 9:23 A.M.)
JUDGE DAVILA: PLEASE BE SEATED. THANK YOU. THANK YOU AGAIN FOR YOUR COURTESY. GOOD MORNING, LADIES AND GENTLEMEN OF THE JURY. THE RECORD SHOULD REFLECT THAT OUR JURY AND ALTERNATES ARE PRESENT. ALL COUNSEL ARE PRESENT. I'M GOING TO PRE-INSTRUCT THIS MORNING, AND THEN WE'LL HEAR OPENING STATEMENTS. BEFORE WE DO THAT, LET ME JUST ASK COUNSEL TO PLEASE STATE YOUR APPEARANCES AGAIN IN THE PRESENCE OF THE JURY, PLEASE. WHO APPEARS FOR THE OF THE GOVERNMENT?
MR. LEACH: GOOD MORNING, YOUR HONOR. GOOD MORNING, LADIES AND GENTLEMEN. ROBERT LEACH ON BEHALF OF THE UNITED STATES. I'M JOINED BY JEFF SCHENK, JOHN BOSTIC, ADDY HERNANDEZ, AND OUR PARALEGAL LAKISHA HOLLIMAN. THANK YOU, YOUR HONOR.
JUDGE DAVILA: GOOD MORNING. THANK YOU. AND FOR THE DEFENSE?