Mistrial Ruling, Post-Verdict Status, and Release Conditions
87 linesJUDGE DAVILA: THANK YOU. WE'RE BACK ON THE RECORD. ALL COUNSEL ARE PRESENT AND MS. HOLMES IS PRESENT. THE JURY IS DISCHARGED. COUNSEL, ANY THOUGHTS ABOUT NEXT STEPS?
MR. SCHENK: YES. THANK YOU, YOUR HONOR. A FEW ISSUES. THE FIRST, I THINK IT WOULD MAKE SENSE TO SET A STATUS HEARING REGARDING THE THREE HUNG COUNTS MAYBE A WEEK FROM NOW TO HEAR FROM THE GOVERNMENT, THE GOVERNMENT'S PLAN WITH REGARD TO THOSE COUNTS. I THINK IT WOULD BE APPROPRIATE FOR THE COURT TO FIND A MISTRIAL AS TO THOSE COUNTS, AND THEN THE GOVERNMENT WILL -- CAN ADVISE THE COURT AT A NEXT HEARING WHAT IT PLANS TO DO WITH REGARD TO THOSE COUNTS. A FEW OTHER THINGS, BUT I CAN PAUSE ON THAT IF WE WANTED TO DISCUSS THAT FOR A MOMENT.
JUDGE DAVILA: OKAY. THANK YOU.
MR. DOWNEY: YOUR HONOR, WE HAVE NO OBJECTION TO A STATUS CONFERENCE IN A WEEK. WE WOULD INTEND TO MAKE VARIOUS MOTIONS AND WOULD BE IN A POSITION TO PROPOSE A SCHEDULE RELATED TO THOSE. BUT IT SEEMS TO ME THAT GIVEN THE PENDENCY OF THE GOVERNMENT'S POSITION ON THE THREE COUNTS, THAT MIGHT BEST BE DONE AT THAT TIME RATHER THAN NOW.
JUDGE DAVILA: IS THERE ANY OBJECTION TO THE COURT FINDING A MISTRIAL AS TO COUNTS THREE, FOUR, AND FIVE BASED ON THE JURY'S VERDICT?
MR. SCHENK: NOT FROM THE GOVERNMENT.
MR. DOWNEY: WELL, YOUR HONOR, I HAVE NO POSITION ON THAT. I THINK IT'S ENTERED AS A NO VERDICT, SO I DON'T KNOW THAT A MISTRIAL IS APPROPRIATE.
JUDGE DAVILA: WELL, THEY DID NOT REACH -- THE JURY DID NOT REACH A VERDICT ON THOSE THREE COUNTS AND THE COURT WILL FIND -- AND WE SAW THAT IN THE VERDICT FORM, AND WE SAW THAT AT LEAST IN TWO OF THE NOTES THAT THE JURORS SENT OUT TO US. SO I WILL FIND THAT IT'S APPROPRIATE TO FIND A MISTRIAL AS TO COUNTS THREE, FOUR, AND FIVE OF THE THIRD SUPERSEDING INDICTMENT. AND I'M HAPPY TO SET THAT FOR STATUS CONFERENCE NEXT WEEK IF YOU WOULD LIKE OR A DATE THAT'S CONVENIENT.
MR. DOWNEY: SHOULD WE TALK ABOUT A PROPOSED DATE AND SUBMIT IT BY -- AND SUBMIT IT TO THE COURT?
JUDGE DAVILA: THAT'S FINE IF YOU WOULD LIKE TO DO THAT.
MR. SCHENK: THAT'S FINE WITH THE GOVERNMENT.
JUDGE DAVILA: ALL RIGHT. THANK YOU.
MR. DOWNEY: DOES IT SUIT THE COURT TO LEAVE PENDING AT THIS TIME SETTING ANY SCHEDULE WITH REGARD TO RULE 29 AND RULE 33 MOTIONS BECAUSE WE -- OBVIOUSLY WE MAY HEAR SOMETHING FROM THE GOVERNMENT THAT WOULD AFFECT WHETHER THOSE ARE APPROPRIATE AT THIS TIME.
JUDGE DAVILA: WELL, YOU DID MAKE A RULE 29, A TIMELY RULE 29 MOTION THAT PRESERVED THAT. SHOULD WE DEFER ANY FURTHER DISCUSSION ON THAT FOR SCHEDULING PURPOSES TO ALLOW YOU TO MEET AND CONFER? IS THAT WHAT YOU WOULD LIKE TO DO?
MR. DOWNEY: I THINK SO, YOUR HONOR. I MEAN, IT WOULD BE OUR INTENTION TO RENEW UNDER RULE 29 AND TO MAKE VARIOUS MOTIONS PURSUANT TO RULE 33, AND I KNOW THE GOVERNMENT HAS, YOU KNOW, ANOTHER EVENT WITH SOME OVERLAPPING TEAM MEMBERS, SO IT MIGHT MAKE SENSE FOR US TO CONFER ON WHAT IS SENSIBLE IN LIGHT OF THOSE COMMITMENTS.
JUDGE DAVILA: ALL RIGHT. THANK YOU.
MR. SCHENK: THAT'S CERTAINLY FINE WITH THE GOVERNMENT TO ADD THAT TO OUR MEET AND CONFER AND THEN WE COULD COME UP WITH A SCHEDULE, MAYBE DISCUSS THAT AT OUR NEXT STATUS HEARING.
JUDGE DAVILA: SURE. THAT'S FINE. AS TO A REFERRAL TO THE PROBATION DEPARTMENT, I'M NOT INCLINED TO DO THAT TODAY, AND WE CAN DISCUSS THAT AT OUR STATUS CONFERENCE AS WELL. I HAD THOUGHT THAT IF THERE WAS GOING TO BE A REFERRAL IN THIS MATTER, I MIGHT DEFER THAT UNTIL AFTER ANY OTHER LITIGATION INVOLVING THE CODEFENDANT IS RESOLVED. THAT'S MY INITIAL THOUGHT ON THAT, AND WE COULD CONTINUE TO SET STATUS AS TO REFERRAL AS NEEDED. THAT WOULD BE MY THOUGHT ON THAT. I DON'T KNOW WHAT THE PARTIES FEEL ABOUT THAT.
MR. SCHENK: I THINK THAT THE COURT COULD SET A SENTENCING DATE EVEN IF IT HASN'T REFERRED THE DEFENDANT TO PROBATION FOR THE PREPARATION OF A PSR. MY THOUGHT WAS TO FIRST RESOLVE THE ISSUE WITH REGARD TO THE THREE COUNTS, WHETHER THERE WOULD BE A RETRIAL OR NOT ON THOSE COUNTS, AND NOT WORRY ABOUT SETTING A SENTENCING DATE. SO I HAD LINKED THE REFERRAL TO PROBATION AND A SENTENCING DATE MORE TO A RESOLUTION OF THE THREE COUNTS --
JUDGE DAVILA: SURE.
MR. SCHENK: -- AS OPPOSED TO THE SEVERED TRIAL, THE CASE WITH THE CODEFENDANT. BUT OBVIOUSLY WE WOULD DEFER TO THE COURT FOR THAT SCHEDULE.
JUDGE DAVILA: WELL, WE CAN -- I'M NOT GOING TO MAKE A REFERRAL TODAY. MAYBE WE'LL CONTINUE OUR CONVERSATION ON THAT ON WHATEVER OUR STATUS DATE IS. AND DO YOU WANT TO JUST NOTIFY THE COURT AS TO -- MAKE INQUIRY AS TO WHAT TIME WE HAVE AVAILABLE ONCE YOU'VE BEEN ABLE TO DISCERN WHAT YOU NEED TO DO AND THE TIMING FOR THAT?
MR. DOWNEY: THAT SOUNDS FINE, YOUR HONOR.
MR. SCHENK: YES, YOUR HONOR.
JUDGE DAVILA: OKAY. ALL RIGHT. SO JUST AS A HOUSEKEEPING MATTER, MS. HOLMES WILL REMAIN AT LIBERTY AT HER CURRENT STATUS WITH ALL OF THE -- I'LL JUST INCORPORATE BY REFERENCE ALL OF THE OTHER OBLIGATIONS REGARDING THAT RELEASE. THOSE WILL REMAIN IN PLACE. I WON'T DISTURB ANY OF THOSE.
MR. SCHENK: YOUR HONOR, THE GOVERNMENT WOULD APPRECIATE BEING HEARD BRIEFLY ON THAT.
JUDGE DAVILA: YES.
MR. SCHENK: WE DO NOT INTEND TO ASK THE COURT TO REMAND THE DEFENDANT TODAY, BUT WE DO THINK THAT IT IS APPROPRIATE TO MODIFY THE CURRENT CONDITIONS OF RELEASE. CURRENTLY MS. HOLMES IS OUT ON AN UNSECURED BOND, JUST A SIGNATURE BOND, AND WE THINK NOW IT IS APPROPRIATE TO CHANGE THAT TO A SECURED BOND. WE'VE BRIEFLY DISCUSSED THAT WITH COUNSEL. I THINK WE CAN GO ABOUT IT ONE OF TWO WAYS. THE COURT COULD CONTINUE TO HEAR ARGUMENTS, FOR INSTANCE, A BAIL REVIEW HEARING BEFORE YOUR HONOR. IF THE COURT WOULD PREFER, WE COULD BE REFERRED TO THE MAGISTRATE AND CONTINUE OUR DISCUSSION THERE. WE COULD HAVE A REVISED PRETRIAL REPORT OR A REVISED BAIL REPORT TO GUIDE THAT DISCUSSION, OR WE COULD JUST, AT OUR NEXT APPEARANCE IN FRONT OF YOUR HONOR, HEAR ARGUMENT FROM THE GOVERNMENT AND THE COURT COULD THEN MODIFY THE DEFENDANT'S BAIL TO WHAT THE GOVERNMENT IS REQUESTING. THE AMOUNT DOES NOT NEED TO CHANGE. WE WOULD JUST REQUEST THAT IT CHANGE TO A SECURED BOND. AND IF GIVEN ADVANCED NOTICE, THAT PROBABLY COULD BE TAKEN CARE OF AT A NEXT STATUS DATE.
JUDGE DAVILA: SO YOU'RE SUGGESTING EVEN A PROPERTY BOND?
MR. SCHENK: YES, YOUR HONOR.
MR. DOWNEY: I WOULD SUGGEST THAT WE DISCUSS THE DETAILS OF THAT WITH MR. SCHENK, THAT THE CURRENT CONDITIONS REMAIN IN PLACE FOR THE NEXT WEEK OR SO UNTIL WE SET THE STATUS CONFERENCE, AND WE CAN TAKE IT UP THEN.
JUDGE DAVILA: SUBJECT TO ANY MODIFICATION THAT THE COURT -- AND I'LL KEEP IT. IT'S IMPORTANT THAT THE TRIAL COURT KEEP THAT FOR ANY FURTHER ACTION.
MR. SCHENK: YES, YOUR HONOR.
JUDGE DAVILA: BUT AS OF TODAY, ALL OF THE ORIGINAL CONDITIONS REMAIN IN PLACE AND ALL OF THE OBLIGATIONS IN THAT ORDER REMAIN IN PLACE SUBJECT TO REVIEW. AND I DON'T HAVE ANY DIFFICULTY REFERRING IT TO PRETRIAL SERVICES JUST FOR AN UPDATE ON THINGS. THAT MIGHT BE HELPFUL, TOO. I DON'T KNOW THE LAST TIME, WHEN WAS IT, 2018 WHEN IT WAS THE LAST REPORT. THINGS HAVE CHANGED. SO LET ME REFER THIS TO PRETRIAL SERVICES JUST FOR AN UPDATED REPORT TO ASSIST THE PARTIES IN OUR DISCUSSION AT THE STATUS HEARING. AND THAT MAY REQUIRE YOUR CLIENT BEING REINTERVIEWED, WHATEVER THEY NEED. I DON'T KNOW WHAT THEY'LL DO, BUT YOU'LL GET A REPORT. AND IF YOU COULD LOOP IN PRETRIAL SERVICES WITH SUFFICIENT NOTICE SO THAT THEY GET THE WORK DONE PRIOR TO OUR STATUS. IF WE MEET NEXT WEEK, THEY MIGHT NOT HAVE ENOUGH TIME TO GET THAT DONE, SO JUST BEAR THAT IN MIND. ANYTHING?
MR. SCHENK: MAY I JUST HAVE ONE MOMENT?
JUDGE DAVILA: YES, PLEASE.
(DISCUSSION AMONGST GOVERNMENT COUNSEL OFF THE RECORD.)
MR. DOWNEY: YOUR HONOR, WOULD THAT REQUEST BE APPROPRIATE NOW OR SHOULD WE WAIT TO SEE WHAT THE GOVERNMENT IS GOING TO DO WITH THE THREE REMAINING COUNTS? IT SEEMS TO ME IT MIGHT --
JUDGE DAVILA: FOR THE PRETRIAL SERVICES?
MR. DOWNEY: YEAH. I DON'T HAVE ANY, I DON'T HAVE ANY PARTICULAR OBJECTION TO IT, BUT IT SEEMS TO ME THAT IF THERE'S GOING TO BE FURTHER PROCEDURE IN THIS CASE AS TO A VERDICT, THEN IT PROBABLY OUGHT TO WAIT.
JUDGE DAVILA: WELL, THAT'S TRUE, BUT I'D LIKE TO GET IT STARTED, AT LEAST LET PRETRIAL SERVICES KNOW WHAT IS GOING ON AND THEY CAN MARSHAL WHATEVER THEY DO. AND IF IT CHANGES, THEY CAN CERTAINLY RECEIVE A PHONE CALL INDICATING AS MUCH. BUT JUST TO GET IT STARTED SO WE DON'T HAVE ANY OTHER DELAYS I THINK WOULD BE APPROPRIATE, AND WE'LL SEE WHERE THAT IS. I'VE JUST BEEN HANDED A NOTE FROM OUR VERY EFFICIENT PRETRIAL SERVICE OFFICER. HE'S ON HIS WAY UP. I THINK HE'S GOING TO REQUEST THAT MS. HOLMES GO TO PRETRIAL SERVICES TODAY WHILE SHE'S IN THE BUILDING. MAYBE THEY CAN COLLECT WHATEVER INFORMATION THAT THEY NEED, AND THAT WOULD BE MUCH MORE EFFICIENT. LET'S WAIT UNTIL HE ARRIVES. LET'S SEE. I'M NOT GOING TO TAKE ANY ACTION, OF COURSE, ON RELEASING ANY EXHIBITS AT THIS POINT OR ANY OTHER MATTERS REGARDING EVIDENCE. ANYTHING FURTHER THAT WE SHOULD BE THINKING ABOUT?
MR. DOWNEY: MAY I JUST TALK TO MY COLLEAGUES?
JUDGE DAVILA: YES, PLEASE.
(DISCUSSION AMONGST DEFENSE COUNSEL OFF THE RECORD.)
MR. DOWNEY: NOTHING ON OUR SIDE, YOUR HONOR.
JUDGE DAVILA: HE'S COMING UP, ADRIANA?
COURT CLERK: HE DID INDICATE, YOUR HONOR, HE'S ON HIS WAY.
JUDGE DAVILA: OKAY.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: IT LOOKS LIKE THE AFTERNOON OF MAYBE THE 12TH MIGHT BE --
COURT CLERK: ARE YOU GOING TO DO IT BY ZOOM OR IN PERSON?
JUDGE DAVILA: WELL, I THINK IN PERSON. WILL COUNSEL BE ABLE TO MAKE AN IN PERSON ON THE 12TH, OR DID YOU HAVE THOUGHTS ON THAT?
MR. DOWNEY: WELL, MR. SCHENK JUST SUGGESTED MAYBE WE DO IT BY ZOOM, BUT -- AND --
JUDGE DAVILA: NO, NO.
MR. DOWNEY: BUT WE'LL MAKE OURSELVES AVAILABLE WHEN THE COURT SETS IT AND I THINK THE AFTERNOON OF THE 12TH WOULD BE FINE.
JUDGE DAVILA: WELL, I'M HAPPY TO DO ZOOM IF THAT'S CONVENIENT FOR THE PARTIES FOR THAT PURPOSE.
MR. SCHENK: NO OBJECTION FROM THE GOVERNMENT. WHATEVER IS MOST CONVENIENT.
JUDGE DAVILA: OKAY. I SEE MR. RANGEL IS NOW PRESENT FROM PRETRIAL SERVICES. THANK YOU FOR COMING UP. I HAVE REFERRED MS. HOLMES FOR AN UPDATE ON -- FOR A PRETRIAL SERVICES REPORT. WE'RE GOING TO PROBABLY HAVE A HEARING NEXT WEEK REGARDING WHETHER OR NOT THERE WILL BE ANY CHANGE IN THE CONDITIONS OF HER RELEASE. THE GOVERNMENT IS REQUESTING THAT THERE BE SOME SECURED BOND IN PLACE NOW THAT THE JURY HAS REACHED DECISIONS ON SOME OF THE COUNTS. SO THAT'S SOMETHING WE'LL EXPLORE. I DON'T KNOW IF THAT'S SOMETHING THAT YOU WANTED TO DO TODAY WITH AN INTERVIEW OR UPDATES.
COURT STAFF: I CAN, YOUR HONOR, WHENEVER YOU WOULD LIKE US TO COMPLETE THE UPDATED --
JUDGE DAVILA: HOW LONG -- CAN YOU JUST TELL ME, I'M JUST CURIOUS, HOW LONG WOULD THAT BE IF MS. HOLMES WERE TO GO TO YOUR OFFICE NOW AND TALK WITH YOU, ANY IDEA OF A TIMELINE ON THAT?
COURT STAFF: I'D SAY APPROXIMATELY NO MORE THAN ONE HOUR, YOUR HONOR. WE WOULD PROBABLY TALK ABOUT FINANCIAL INFORMATION AND WHAT HER -- WHAT SHE IS PROPOSING, WHAT SHE IS PROPOSING FOR THE SECURED BOND, YOUR HONOR.
JUDGE DAVILA: AND WOULD YOU TALK TO COUNSEL ABOUT THAT AS WELL?
COURT STAFF: YES, YOUR HONOR, I WOULD TALK TO HER COUNSEL.
JUDGE DAVILA: OKAY. WELL, MAYBE WE SHOULD -- MAYBE YOU SHOULD KNOW WHAT THE GOVERNMENT IS GOING TO ASK FOR. SO, MR. SCHENK, WHAT ARE YOUR THOUGHTS?
MR. SCHENK: I THINK THE GOVERNMENT'S REQUEST WOULD BE THAT WHAT IS CURRENTLY SECURED JUST BY MS. HOLMES'S SIGNATURE BE CONVERTED TO A SECURED BOND EITHER IN THE FORM OF PROPERTY OR CASH, IF THAT'S AVAILABLE.
JUDGE DAVILA: OKAY. SO THE POSSIBILITY OF AN EITHER CASH BOND OR PROPERTY BOND THAT REQUIRES PAPERWORK AND THOSE TYPES OF THINGS; RIGHT?
MR. SCHENK: YES, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. ANYTHING, MR. DOWNEY?
MR. DOWNEY: NOT AT THIS TIME, YOUR HONOR.
JUDGE DAVILA: DO YOU HAVE ANY QUESTIONS, MR. RANGEL?
COURT STAFF: NOT AT THIS TIME.
JUDGE DAVILA: WELL, I'M GOING TO STEP DOWN. THEY'LL STILL BE HERE AND YOU CAN TALK WITH THEM IF YOU WOULD LIKE. IS YOUR CLIENT AVAILABLE TO MEET WITH PRETRIAL SERVICES JUST NOW?
MR. DOWNEY: YES, I THINK SO.
(DISCUSSION AMONGST DEFENSE COUNSEL OFF THE RECORD.)
MR. DOWNEY: YOUR HONOR, MR. WADE SUGGESTS PROBABLY A GOOD THOUGHT, WHICH IS MIGHT WE CONFER WITH MR. SCHENK WITH MORE PRECISION AS TO WHAT HE HAS IN MIND AND THEN SET UP AN INTERVIEW WITH PRETRIAL SERVICES FOR WHICH MS. HOLMES COULD EITHER COME DOWN OR WE COULD DO BY ZOOM RATHER THAN DO IT TODAY? WE COULD DO IT IN THE NEXT FEW DAYS. BUT IT MIGHT GIVE US AN OPPORTUNITY TO REVIEW ASSETS AND SO FORTH AND HAVE THAT DISCUSSION WITH MR. SCHENK.
MR. SCHENK: THAT'S FINE WITH ME, YOUR HONOR.
COURT STAFF: YOUR HONOR, IS THERE ANY SPECIFIC DATE THAT YOU WANT THIS COMPLETED BY?
JUDGE DAVILA: WELL, I'M AT THE MERCY OF COUNSEL HERE, MR. RANGEL. THEY ARE GOING TO TELL ME WHICH DATE IS GOOD. I SUGGESTED THE 12TH AND IT LOOKS LIKE IT'S GOOD FOR OUR SCHEDULE. SO ARE YOU AVAILABLE THEN?
COURT STAFF: YES, YOUR HONOR. IT COULD BE DONE ON THE AFTERNOON OF THE 12TH, YES, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. LET'S USE THAT AS KIND OF A TARGET DATE FOR OUR PURPOSES THEN.
MR. DOWNEY: OKAY. THANK YOU, YOUR HONOR.
MR. SCHENK: THANK YOU, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT.
MR. DOWNEY: THANK YOU, YOUR HONOR.
JUDGE DAVILA: THANK YOU. WE'LL BE IN RECESS.
COURT CLERK: COURT IS ADJOURNED.
(COURT CONCLUDED AT 5:09 P.M.)