Juror Issues and Witness Immunity Ruling
159 linesSAN JOSE, CALIFORNIA SEPTEMBER 14, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:42 A.M.)
(JURY OUT AT 8:42 A.M.)
JUDGE DAVILA: GOOD MORNING. PLEASE BE SEATED. THANK YOU AGAIN FOR YOUR COURTESY. LET'S GO ON THE RECORD IN OUR MATTER UNITED STATES VERSUS HOLMES. LET ME GET APPEARANCES OF THE PARTIES FOR TODAY, PLEASE.
MR. LEACH: GOOD MORNING, YOUR HONOR. ROBERT LEACH, JEFF SCHENK, AND JOHN BOSTIC FOR THE UNITED STATES.
JUDGE DAVILA: THANK YOU. GOOD MORNING EVERYONE. MR. WADE.
MR. DOWNEY: GOOD MORNING, YOUR HONOR.
JUDGE DAVILA: OR MR. DOWNEY.
MR. DOWNEY: I'M CLOSEST.
JUDGE DAVILA: OKAY.
MR. DOWNEY: KEVIN DOWNEY FOR MS. HOLMES. WITH ME ARE LANCE WADE, KATIE TREFZ, AND J.R. FLEURMONT, AND OUR COCOUNSEL, JOHN CLINE, IS HERE, AND MS. HOLMES IS PRESENT.
JUDGE DAVILA: THANK YOU. GOOD MORNING, EVERYONE. WE ARE OUTSIDE OF THE PRESENCE OF OUR JURY, AND I WANTED TO TAKE UP A COUPLE OF MATTERS. INITIALLY LET ME TALK ABOUT WE WERE NOT IN SESSION LAST FRIDAY, AND THAT WAS OWING TO SOME CONVERSATION WE HAD WITH ONE OF OUR JURORS, JUROR NUMBER 9, WHO INFORMED US OF POTENTIAL CONTACT WITH AN INDIVIDUAL WHO HAD CONTRACTED OR WAS POSITIVE FOR COVID. OVER THE WEEKEND, AND I THINK YESTERDAY, MS. KRATZMANN RECEIVED EMAIL INFORMATION, AND I THINK I SHARED THAT, THAT WAS SHARED WITH COUNSEL THAT OUR JUROR RECEIVED TWO NEGATIVE TESTS, ONE ON SEPTEMBER 9TH AND ANOTHER TEST ON SEPTEMBER 11TH, AND BOTH OF THOSE TESTS WERE NEGATIVE. WE RECEIVED THAT, AND WE'RE HAPPY FOR THAT JUROR, AND THAT'S WHY WE'RE IN SESSION TODAY. I THINK COUNSEL RECEIVED THAT INFORMATION, DID YOU?
MR. DOWNEY: YES, YOUR HONOR.
MR. SCHENK: YES, YOUR HONOR.
JUDGE DAVILA: GREAT. AND THEN WE DID RECEIVE SOME OTHER INFORMATION REGARDING JUROR NUMBER 7 WHO YOU RECALL HAD SOME ISSUES WITH HER EMPLOYMENT. I HAD ASKED HER TO TALK WITH HER EMPLOYER TO SEE IF IT WERE POSSIBLE TO RESCHEDULE HER EMPLOYMENT SUCH THAT SHE COULD REMAIN ON THE JURY. WE RECEIVED, MS. KRATZMANN DID, AN EMAIL FROM JUROR NUMBER 7 INDICATING THAT THAT WAS NOT POSSIBLE. SO I THINK WE SHARED THAT INFORMATION WITH COUNSEL AS WELL. IN LIGHT OF THAT, I'M INCLINED TO EXCUSE HER FOR FINANCIAL HARDSHIP REASONS. BUT LET ME ASK COUNSEL IF THEY WISH TO COMMENT.
MR. SCHENK: YES WE AGREE. NO OBJECTION.
MR. DOWNEY: NO OBJECTION TO EXCUSAL FOR HARDSHIP.
JUDGE DAVILA: THANK YOU VERY MUCH. THEN JUROR NUMBER 7, MS. HERNANDEZ-PEREZ, IS EXCUSED. AND WE'LL ADVANCE ALTERNATE NUMBER 1 TO SEAT 7, AND THAT ALTERNATE JUROR WILL REPLACE MS. HERNANDEZ-PEREZ AS A SEATING JUROR. THANK YOU FOR THAT. WE'LL DO THAT WHEN THE JURY COMES OUT. THERE WILL BE GREAT FORMALITY WHEN HE MOVES FROM HIS SEAT TO SEAT NUMBER 7. I NEXT WANT TO TALK ABOUT THE GOVERNMENT HAD FILED DOCUMENT 1014, WHICH WAS AN EX PARTE APPLICATION FOR IMMUNITY FOR A WITNESS. MR. SCHENK, MR. LEACH, CAN YOU JUST SPEAK TO ME A LITTLE BIT ABOUT THIS, PLEASE. THE DEFENSE HAS RECEIVED THIS ALSO I ASSUME.
JUDGE DAVILA: ALL RIGHT. THANK YOU.
MR. LEACH: YES, YOUR HONOR. THE GOVERNMENT ANTICIPATES CALLING AFTER ERIKA CHEUNG MS. SUREKHA GANGADKHEDKAR WHO IS A FORMER EMPLOYEE OF THERANOS. HER COUNSEL INDICATED TO ME THAT IF CALLED TO TESTIFY SHE WOULD INVOKE HER FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION. MY OFFICE HAS OBTAINED APPROVAL FROM DOJ TO IMMUNIZE HER BECAUSE OF HER INVOCATION, AND THAT'S THE BASIS OF THE EX PARTE APPLICATION.
JUDGE DAVILA: I SEE. CAN YOU -- THANK YOU. I HAVE THAT BEFORE ME, AND I JUST HAVE A COUPLE OF QUESTIONS ABOUT THIS. SHOULD THE COURT BE CONCERNED THAT THIS POTENTIAL WITNESS WHO IS IN ESSENCE GRANTED IMMUNITY, SHOULD I BE CONCERNED ABOUT ANY COMPLICITY IN THE UNDERLYING CHARGES SUCH THAT I NEED TO BALANCE THOSE INTERESTS WITH THE ORDER?
MR. LEACH: I DON'T THINK THE COURT NEEDS TO DO THAT. I THINK THAT THE STATUTORY BASIS FOR IMMUNITY ARE LAID OUT IN 18 U.S.C. SECTION 6002. IT'S A DECISION FOR THE EXECUTIVE BRANCH TO DECIDE IF IT'S IN THE PUBLIC INTEREST TO CONFER IMMUNITY. SO I THINK THE COURT'S ROLE IS TO ASSESS WHETHER THOSE STATUTORY FACTORS ARE MET, AND I DON'T THINK THAT THE COURT NEEDS TO DO ANY ANALYSIS BEYOND THAT.
JUDGE DAVILA: ALL RIGHT. THANK YOU. MR. DOWNEY, DO YOU WISH TO BE HEARD ON THIS? MR. WADE?
MR. WADE: I'M WALKING A LONG WAY, YOUR HONOR, TO SAY THAT THE DEFENSE TAKES NO POSITION ON THIS MOTION.
JUDGE DAVILA: THANK YOU VERY MUCH. I JUST WANTED TO MAKE THAT INITIAL INQUIRY, MR. LEACH. I'M AWARE OF THE STATUTORY GROUNDS FOR THIS. I HAVE THE DOCUMENT IN FRONT OF ME, AND I WILL APPROVE THIS, AND I WILL SIGN THIS, AND THIS WILL BE ON FILE TODAY.
MR. LEACH: THANK YOU, YOUR HONOR.
JUDGE DAVILA: THANK YOU. I WANT TO TURN NEXT TO AN ISSUE THAT WAS JUST RAISED THIS MORNING TO ME. I WAS SHARED AN EMAIL FROM THE COURT'S MEDIA COORDINATOR AND THE COURT'S MEDIA COORDINATOR APPARENTLY MONITORED ON SOMETHING CALLED "LAW 360," A TWITTER FEED FROM AN INDIVIDUAL. I'LL JUST READ THE QUOTE: "THE WOMAN BEHIND ME WHO GREW UP IN NJ IS A SPECTATOR," QUOTE, "'DON'T FORGET THE ME TOO MOVEMENT,'" END QUOTE, "SHE SHOUTS AS JURORS WAIT TO GO THROUGH SECURITY. "A MAN IN A SUIT BEHIND HER TELLS HER TO BE QUIET BECAUSE SHE COULD CAUSE A MISTRIAL. "'THIS MAY BE HER ONLY DAY ATTENDING COURT,' SHE REPLIES." THIS WAS FORWARDED FROM OUR MEDIA COORDINATOR, AND I PRESUME YOU READ IT OFF OF THE TWITTER FEED. LET ME JUST STATE THAT ANYONE WHO INTERFERES WITH A JUROR, A SITTING JUROR IN A CASE RISKS INVESTIGATION FOR TAMPERING WITH THE JURY AND THE COURT PROCESS, AND THAT COULD RESULT IN AN INVESTIGATION BY THE COURT, AND THE COURT COULD ORDER AN INVESTIGATION. SO, COUNSEL, I JUST WANT TO TELL YOU, AND I THINK YOU'RE AWARE OF THIS, IF ANYONE DOES INTERFERE OR ATTEMPT TO INTERFERE WITH A JUROR, ANY OF THE JURORS, I'D LIKE IT TO BE BROUGHT TO MY ATTENTION, PLEASE, AND I'LL TAKE WHATEVER ACTION I FEEL IS APPROPRIATE. SO THANK YOU FOR THAT. ANYTHING FURTHER ON THAT?
MR. SCHENK: NO. THANK YOU, YOUR HONOR.
JUDGE DAVILA: MR. DOWNEY, ANYTHING? MR. WADE? SORRY.
JUDGE DAVILA: ALL RIGHT. THANK YOU VERY MUCH. NEXT I'D LIKE TO TAKE UP A QUESTION ABOUT JUROR NUMBER 12. AND I BELIEVE MS. KRATZMANN SHARED SOME EMAILS THAT JUROR NUMBER 12 SENT TO HER. THERE'S A QUESTION ABOUT -- NOT A QUESTION, BUT SHE HAD INDICATED THAT SHE HAD PREVIOUSLY WORKED AT KPMG FROM MAY UNTIL OCTOBER IN 2012 AS AN ADMINISTRATIVE ASSISTANT FOR A NUMBER OF PARTNERS. SHE INDICATES SHE WAS NEVER EXPOSED TO ANY INFORMATION OR MATERIAL REGARDING THE CASE. SHE FOLLOWED UP -- THIS WAS SEPTEMBER 8TH, I BELIEVE. ON SEPTEMBER 12TH SHE FOLLOWED UP WITH AN EMAIL INDICATING THAT SHE HAD A VERY GOOD FRIEND WHO WORKED AT KPMG FOR 20-PLUS YEARS, HOWEVER, SHE WAS NOT IN A ROLE THAT WOULD REVEAL ANY INFORMATION OR GAIN KNOWLEDGE OF ANY CASE OR CLIENTS. SHE APPARENTLY IS A SENIOR REPRESENTATIVE OFFICE SERVICES. THAT WAS RECEIVED. THE OTHER EMAIL THAT WAS RECEIVED FROM THIS WITNESS, OR EXCUSE ME, JUROR ON SEPTEMBER 7TH THE JUROR E-MAILED MS. KRATZMANN ABOUT A QUESTION AND SHE HAD A QUESTION ABOUT WHETHER OR NOT THE JURY WOULD BE RESPONSIBLE FOR POTENTIAL SENTENCING PHASE IN THE CASE. I THINK WE SHARED THAT WITH COUNSEL, THOSE EMAILS WITH COUNSEL. DO YOU HAVE THOSE?
MR. SCHENK: YES. YES, YOUR HONOR.
MR. DOWNEY: YES, YOUR HONOR.
JUDGE DAVILA: THANK YOU. MY THOUGHT WAS TO -- EXCUSE ME, IS TO BRING THIS JUROR OUT THIS MORNING, OUTSIDE OF THE PRESENCE OF THE OTHER JURORS, AND MAKE SOME INQUIRIES ABOUT THESE EMAILS. I'LL ALLOW COUNSEL TO ASK QUESTIONS IF YOU FEEL IT'S APPROPRIATE AS WELL. ANY OBJECTION TO THAT PROCESS?
MR. SCHENK: NO, YOUR HONOR.
MR. DOWNEY: NO, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. LET'S BRING JUROR NUMBER 12 OUT THEN. COUNSEL, WHILE THAT IS HAPPENING, MY THOUGHT WAS I WOULD READ, AFTER OUR DISCUSSION, I THINK I WILL READ TO THE JURY ONCE THEY COME IN NINTH CIRCUIT MODEL INSTRUCTION 7.4, WHICH IS THE JURY CONSIDERATION OF PUNISHMENT. AS YOU RECALL IN MY VOIR DIRE, AND I BELIEVE ALSO IN MY PRELIMINARY INSTRUCTIONS, I INSTRUCTED THE JURY THAT THEY ARE NOT TO CONSIDER PUNISHMENT AT ALL, BUT I THOUGHT OUT OF AN ABUNDANCE OF CAUTION I'LL READ THAT TO THEM. AND LET ME INDICATE THAT I HAVE EDITED 7.4. I HAVE LOOKED AT THE SUBMISSION OF BOTH PARTIES IN YOUR JURY INSTRUCTIONS, AND I'VE EDITED ACCORDING TO MS. HOLMES'S EDITS. I'LL PASS YOU DOWN THIS, AND YOU CAN LOOK AT IT. KYLE, DO YOU WANT TO HAND THESE (HANDING). THANK YOU. GIVE ONE TO IRENE. ANY COMMENT ON 7.4 AS I'VE EDITED IT?
MR. DOWNEY: THAT INSTRUCTION IS FINE WITH THE DEFENSE.
MR. LEACH: YOUR HONOR, I DON'T HAVE THE BENEFIT OF THE MODEL IN FRONT OF ME, BUT THIS INSTRUCTION IS FINE. THE GOVERNMENT -- BEFORE THE FINAL INSTRUCTIONS IS GIVEN WE WOULD LIKE TO LOOK AT IT ONE MORE TIME, BUT FOR PURPOSES OF TODAY WE HAVE NO OBJECTION.
JUDGE DAVILA: ALL RIGHT. THANK YOU.
(JUROR NUMBER 12 PRESENT.)
JUDGE DAVILA: GOOD MORNING.
JUROR: GOOD MORNING.
JUDGE DAVILA: PLEASE BE SEATED, LADIES AND GENTLEMEN. WE HAVE JUROR NUMBER 12 OUTSIDE OF THE PRESENCE OF THE OTHER JURORS. FIRST, BEFORE WE DO ANYTHING ELSE, I DO WANT TO ASK YOU SOME QUESTIONS ABOUT SOME EMAILS THAT YOU SENT TO MS. KRATZMANN. BUT BEFORE I DO THAT, I DO WANT TO ASK YOU A QUESTION THAT I'M GOING TO ASK YOUR COLLEAGUES IN JUST A MOMENT WHEN THEY JOIN US, AND THAT IS THAT I'D LIKE TO KNOW WHETHER OR NOT, SINCE OUR LAST IN-COURT APPEARANCE, SINCE YOUR LAST IN-COURT APPEARANCE, WHETHER OR NOT YOU'VE SEEN, HEARD, READ, OR BEEN SUBJECT TO ANY TYPE OF MEDIA OR CONVERSATION ABOUT THIS CASE OR ANYTHING TO DO WITH IT? HAVE ANY OF THOSE THINGS HAPPENED?
JUROR: NO, NOT REALLY.
JUDGE DAVILA: SO I NEED TO INQUIRE. WHEN YOU SAY "NOT REALLY," TELL ME WHAT?
JUROR: SO BEFORE I WAS SELECTED I HAD MENTIONED TO A FRIEND THAT I WAS UP FOR JURY DUTY. I NEVER MENTIONED WHAT CASE IT WAS, BUT I GUESS THEY KIND OF FIGURED IT OUT, AND WHEN THEY ASKED ME I DIDN'T CONFIRM OR DENY. THURSDAY I GOT A TEXT FROM MY FRIEND'S WIFE ASKING ME IF I WAS OKAY, AND I THOUGHT THAT WAS KIND OF WEIRD. SO LATER HE CALLED ME AND HE ASKED ME IF I WAS OKAY. AND HE SAID THAT ON THE NEWS THAT THERE WAS SOMETHING ABOUT -- I HAD MENTIONED, NO, I DIDN'T HAVE COURT TODAY. AND HE SAID, YEAH, I KNOW. AND I SAID, WELL, HOW DO YOU KNOW? AND HE SAID IT WAS ON THE NEWS. I SAID DON'T TELL ME ANYTHING ABOUT IT, AND THEY DIDN'T MENTION IT TO US SO THERE MUST BE SOME REASON WE DON'T KNOW. SO THAT WAS IT.
JUDGE DAVILA: OH, I SEE.
JUROR: BUT I DIDN'T SEE -- I DON'T WATCH THE LOCAL NEWS BECAUSE OF THIS.
JUDGE DAVILA: OKAY.
JUROR: AND THEY DON'T MENTION IT ON CABLE NEWS.
JUDGE DAVILA: OH, OKAY. ALL RIGHT. SO IN REGARDS TO WHETHER OR NOT YOU'VE SEEN, HEARD, OR READ ANYTHING, COMMUNICATED YOURSELF OR ANYONE TO YOU ABOUT THIS CASE, IS THAT ANSWER NO?
JUROR: THE ANSWER IS NO. YES.
JUDGE DAVILA: ALL RIGHT. THANK YOU. LET ME ASK COUNSEL IF THEY HAVE QUESTIONS FOR YOU ABOUT THIS TOPIC?
MR. SCHENK: NO, YOUR HONOR. THANK YOU.
MR. DOWNEY: NOTHING FROM US.
JUDGE DAVILA: ALL RIGHT. THANK YOU. I'D LIKE TO MOVE TO A COUPLE OF OTHER TOPICS AND THEY INVOLVE KPMG.
JUROR: UH-HUH.
JUDGE DAVILA: AND I THINK YOU SENT AN EMAIL TO MS. KRATZMANN ABOUT YOUR CONNECTION WITH KPMG.
JUROR: RIGHT.
JUDGE DAVILA: AND I HAVE THOSE IN FRONT OF ME HERE, AND I KNOW YOU DON'T. AND I'M AT A BIT OF AN ADVANTAGE. I THINK YOU TOLD MS. KRATZMANN THAT IN MAY TO OCTOBER OF 2012 YOU WORKED AS AN ADMINISTRATIVE ASSISTANT THERE?
JUROR: CORRECT.
JUDGE DAVILA: AND I THINK YOU TOLD MS. KRATZMANN THAT YOU WERE NEVER EXPOSED TO ANY INFORMATION OR MATERIAL IN THIS CASE?
JUROR: CORRECT.
JUDGE DAVILA: AND WHAT WERE THE SCOPE OF YOUR DUTIES THERE DURING YOUR EMPLOYMENT?
JUROR: IT WAS, YOU KNOW, MAINLY DOING EXPENSES AND CALENDAR MANAGING, AND JUST ADMINISTRATIVE SUPPORT, BASIC SUPPORT.
JUDGE DAVILA: OKAY. WERE YOU INVOLVED AT ALL IN ANY OF THE WORK THAT ANY OF THE PARTNERS DID OR ANY OF THE EMPLOYEES DID, THAT IS, ANY OF THE FINANCIAL WORK THAT THEY DID?
JUROR: OTHER THAN EXPENSES.
JUDGE DAVILA: OKAY. AND TELL ME A LITTLE BIT ABOUT THAT. WERE YOU RECONCILING THE EXPENSES OR COORDINATING THOSE IN SOME FASHION?
JUROR: FOR THEIR REIMBURSEMENT, YES.
JUDGE DAVILA: I SEE.
JUROR: OR PAYMENT OF THE CARD.
JUDGE DAVILA: I SEE. SO IT WAS A COMPANY CREDIT CARD THAT WAS USED?
JUROR: CORRECT, IN MOST CASES.
JUDGE DAVILA: OKAY. AND THEN WHAT WOULD YOU DO? WHAT WAS YOUR JOB IN THAT REGARD? WHAT DID YOU DO?
JUROR: SO BASICALLY IT WAS MANAGING THE CALENDARS. AND, GOSH, IT'S BEEN A WHILE. I DON'T REMEMBER MORE SPECIFICS, BUT BASIC ADMINISTRATIVE SUPPORT, ANYTHING THAT THEY MAY HAVE NEEDED AS FAR AS, YOU KNOW, COPIES OR EMAILS OR PHONE CALLS OR --
JUDGE DAVILA: I SEE. OKAY.
JUROR: A LOT OF EXPENSING.
JUDGE DAVILA: OKAY. AND YOU WERE -- WERE YOU JUST MATCHING FIGURES? I SAY JUST, PARDON ME.
JUROR: YES.
JUDGE DAVILA: YOU WERE MATCHING THE REQUESTS WITH THE RECEIPTS, THAT TYPE OF THING?
JUROR: CORRECT.
JUDGE DAVILA: AND WERE YOU INVOLVED AT ALL IN ANY OF THE AUDITING WORK OR ANYTHING THAT --
JUROR: NO. NO. JUST PROCESSING ENGAGEMENT LETTERS AND WHATEVER. BUT NOTHING THAT I RECALL SPECIFICS AT ALL, ESPECIALLY AT THIS POINT.
JUDGE DAVILA: SURE. AND THEN YOU FOLLOWED UP INDICATING THAT YOU HAVE A GOOD FRIEND WHO HAS WORKED THERE AT KPMG FOR 20 YEARS AND SHE'S NOT IN A ROLE THAT WOULD REVEAL TO HER ANY INFORMATION?
JUROR: CORRECT.
JUDGE DAVILA: TELL US ABOUT THAT.
JUROR: SO SHE WORKED IN REPROGRAPHICS FOR MANY BEING MANY, MANY YEARS AND JUST RECENTLY NOW SHE'S IN SOME SORT OF SERVICE ROLE.
JUDGE DAVILA: I THINK YOU SAID SENIOR REPRESENTATIVE OFFICER.
JUROR: YES.
JUDGE DAVILA: RIGHT. AND DO YOU TALK TO HER ABOUT HER WORK OR ANYTHING?
JUROR: NOT LIKE -- MORE OF A GOSSIPY KIND OF THING RATHER THAN SPECIFICS ABOUT ANYTHING WORK RELATED.
JUDGE DAVILA: DID ANY OF THE GOSSIP, AND PARDON ME, BUT DID ANY OF THAT TOUCH ON THIS CASE?
JUROR: NO. SHE DOESN'T EVEN KNOW I'M ON THIS JURY.
JUDGE DAVILA: I SEE.
JUROR: SO I'VE TALKED TO NO ONE ELSE EXCEPT THIS ONE PARTICULAR COUPLE BEFORE I GOT, YOU KNOW, PLACED ON JURY DUTY.
JUDGE DAVILA: RIGHT.
JUROR: AND JUST HAPPENED TO MENTION JURY DUTY PERIOD AND NOT ANYTHING OTHER THAN THAT SPECIFICALLY.
JUDGE DAVILA: OKAY.
JUROR: SO NO ONE ELSE REALLY KNOWS.
JUDGE DAVILA: OKAY. IS THERE ANYTHING ABOUT YOUR -- AND YOU RAISE THIS. I THINK WE HEARD SOME TESTIMONY AND THAT COMPANY'S NAME CAME UP LAST WEEK KPMG I THINK.
JUROR: OH, YES, THAT'S WHY I BROUGHT IT TO HER ATTENTION.
JUDGE DAVILA: RIGHT. AND THANK YOU FOR DOING THAT. I APPRECIATE YOUR ATTENTION TO YOUR RESPONSIBILITIES. IS THERE ANYTHING ABOUT YOUR FORMER EMPLOYMENT AND THE FACT THAT YOU KNOW YOUR FRIEND WHO WORKS AT THIS KPMG, ANYTHING ABOUT THAT WILL AFFECT YOUR ABILITY TO CONTINUE TO BE FAIR AND IMPARTIAL AS YOU SIT AS A JUROR?
JUROR: NO. LIKE I SAY, SHE HAS NO IDEA THAT I'M EVEN ON THE JURY.
JUDGE DAVILA: OKAY.
JUROR: AND EVEN IF SHE DID, I THINK SHE HAS NO INFORMATION WHATSOEVER.
JUDGE DAVILA: OKAY.
JUROR: PLUS I DON'T TELL ANYBODY SO IT DOESN'T COME UP SO I DON'T, YOU KNOW, FOR LACK OF A BETTER WAY OF DESCRIBING IT, BECOME COMFORTABLE TALKING ABOUT IT. SO I JUST DON'T EVEN BRING IT UP TO ANYBODY.
JUDGE DAVILA: WELL, THANK YOU. AND THANK YOU FOR FOLLOWING MY ORDER IN THAT REGARD. I APPRECIATE IT. THANK YOU. I'M GOING TO TURN TO THESE LAWYERS AND SEE IF THEY HAVE ANY QUESTIONS FOR YOU.
MR. SCHENK: NOTHING FURTHER.
MR. DOWNEY: NO, YOUR HONOR. I APPRECIATE IT BEING BROUGHT TO OUR ATTENTION, BUT I DON'T HAVE ANY QUESTIONS.
JUDGE DAVILA: ALL RIGHT. THANK YOU. I DO WANT TO ASK YOU ABOUT YOUR EMAIL, ONE OTHER ISSUE, AND YOU INDICATED TO MS. KRATZMANN THAT YOU HAD A QUESTION THAT YOU THOUGHT OF OVER THE WEEKEND. EXCUSE ME. AND YOUR QUESTION WAS, "I DON'T KNOW IF WE WILL HAVE FURTHER OPPORTUNITIES TO TALK WITH YOU ONCE THE TRIAL BEGINS. "MY QUESTION IS, WILL WE ALSO BE RESPONSIBLE FOR THE (POTENTIAL) SENTENCING PHASE OF THIS TRIAL OR IS IT ALREADY PREDETERMINED BASED ON THE CHARGES." AND THEN YOU ENDED SAYING "YOU CAN BCC EVERYONE WITH YOUR ANSWER IF APPROPRIATE." SO LET ME ASK YOU ABOUT THAT QUESTION.
JUROR: WELL, TRIALS THAT I'VE SEEN ON T.V. SOMETIMES HAVE A SENTENCING PHASE THAT THE JURY IS RESPONSIBLE FOR, SO I JUST WANTED TO KNOW BECAUSE YOU GAVE A TIMEFRAME AND THEN THAT WAS FOR, YOU KNOW, THE ANTICIPATION OF THE JURY TIMELINE, AND THEN, OF COURSE, WE WOULD HAVE THE DELIBERATION PHASE, AND THEN ONCE THAT'S OVER, THEN THERE WOULD BE, I WOULD GUESS, I WASN'T SURE IF THERE WOULD BE A SENTENCING PHASE SO I WAS KIND OF TRYING TO TIME OUT IF THAT WAS THE CASE HOW MUCH TIME THAT WOULD INVOLVE.
JUDGE DAVILA: I SEE.
JUROR: IF THERE WAS GOING TO BE AN EXTENDED TIME BEYOND THE 13, 14 WEEKS THAT IS ANTICIPATED FOR THE TRIAL.
JUDGE DAVILA: OKAY. I SEE. ALL RIGHT. DO YOU RECALL ME TELLING YOU AND YOUR COLLEAGUE JURORS THAT THE JURY IS NOT TO CONSIDER SENTENCING, THAT'S NOT SOMETHING THAT THEY SHOULD CONSIDER?
JUROR: I DON'T RECALL.
JUDGE DAVILA: OKAY. ALL RIGHT. AND LET ME ASK A FOLLOW-UP. YOU SAID "YOU CAN BCC EVERYONE." I ASSUME THAT MEANS THAT THE EMAIL WAS SENT BY MS. KRATZMANN TO THE ENTIRE JURY?
JUROR: YEAH. SHE WANTED TO -- IN CASE SOMEBODY ELSE HAD THAT QUESTION IN THEIR MIND, IF SHE WANTED TO SHARE THAT ANSWER WITH THE REST OF THE JURY, THEN I DIDN'T HAVE ANY OBJECTION TO THAT.
JUDGE DAVILA: I SEE.
JUROR: OF COURSE NOT IT BEING ADDRESSED FROM ME BUT FROM HER.
JUDGE DAVILA: RIGHT. RIGHT. LET ME ASK YOU, HAVE YOU TALKED WITH ANY OF YOUR FELLOW JURORS ABOUT THAT QUESTION?
JUROR: NO.
JUDGE DAVILA: THAT DIDN'T COME UP?
JUROR: NO. I FIGURED SHE DIDN'T ADDRESS IT SO I WASN'T GOING TO BRING IT UP MYSELF.
JUDGE DAVILA: OKAY. ALL RIGHT. SO IF I TOLD YOU THIS MORNING THAT IN ANSWER TO YOUR QUESTION THAT THE JURY IS NOT TO BE INVOLVED AT ALL, WON'T BE INVOLVED AT ALL IN SENTENCING, ASSUMING THERE IS A SENTENCING, THAT IS SOLELY IN THE PROVINCE OF THE COURT, YOU WOULD RESPECT THAT?
JUROR: OH, OF COURSE.
JUDGE DAVILA: AND YOU WOULD NOT CONSIDER PUNISHMENT AT ALL DURING YOUR DELIBERATIONS?
JUROR: NO.
JUDGE DAVILA: OKAY. AND I JUST WANT TO EMPHASIZE SOMETHING. I TALKED ABOUT -- DO YOU REMEMBER ME TALKING ABOUT THE PRESUMPTION OF INNOCENCE?
JUROR: OH, OF COURSE.
JUDGE DAVILA: AND YOU UNDERSTAND THAT CARRIES THROUGHOUT THE TRIAL THROUGH YOUR DELIBERATIONS?
JUROR: YES.
JUDGE DAVILA: AND THE PURPOSE OF THE DELIBERATIONS IS TO DETERMINE WHETHER OR NOT THE GOVERNMENT HAS MET THEIR BURDEN. I DON'T WANT TO GO INTO IT WITH YOU WHAT WE TALKED ABOUT LAST WEEK, BUT IT'S IMPORTANT. YOU UNDERSTAND ALL OF THAT?
JUROR: I DO. THANK YOU FOR CLARIFYING.
JUDGE DAVILA: OF COURSE. WHAT I'M GOING TO DO IS TO READ THE INSTRUCTION AGAIN TO YOU AND YOUR COLLEAGUES AGAIN JUST TO MAKE SURE THAT THERE'S CLARITY ON THAT.
JUROR: OKAY.
JUDGE DAVILA: LET ME TURN IT OVER TO COUNSEL AND SEE IF THEY HAVE SOME QUESTIONS FOR YOU.
MR. SCHENK: NOTHING FURTHER. THANK YOU.
MR. DOWNEY: NOTHING FROM US, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. THANK YOU VERY MUCH FOR SPENDING TIME WITH ME THIS MORNING. I APPRECIATE IT.
JUROR: OF COURSE.
JUDGE DAVILA: SO WE'RE GOING TO -- WELL, LET'S SEE. WHY DON'T WE HAVE YOU GO BACK. COULD WE BRING EVERYONE OUT NOW? IS EVERYONE READY TO PROCEED?
MR. SCHENK: YES, YOUR HONOR.
COURT CLERK: I'M MISSING JUROR NUMBER 2. I DON'T KNOW IF HE'S HERE.
JUDGE DAVILA: LET'S HAVE YOU GO BACK FOR A MOMENT, AND MS. KRATZMANN WILL ESCORT YOU BACK TO THE JURY ROOM.
JUROR: OF COURSE.
JUDGE DAVILA: THANK YOU FOR YOUR CANDOR THIS MORNING. WE APPRECIATE. THANK YOU.
JUROR: OF COURSE. YOU'RE WELCOME.
(PROCEEDINGS HELD OUT OF THE PRESENCE OF JUROR NUMBER 12.)
JUDGE DAVILA: ALL RIGHT. PLEASE BE SEATED. I'M INFORMED THAT JUROR NUMBER 2 HAD NOT ARRIVED YET SO WE'LL GIVE THIS A MOMENT.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: I'M GOING TO STEP DOWN AND SEE WHAT IS GOING ON HERE. HOPEFULLY WE CAN START IN JUST A MOMENT. THAT DID IT.
(JURY IN AT 9:10 A.M.)
JUDGE DAVILA: PLEASE BE SEATED. THANK YOU. THE RECORD SHOULD REFLECT THAT OUR JURY AND ALTERNATES ARE NOW IN THE COURTROOM. GOOD MORNING EVERYONE. BEFORE WE GO FURTHER, I SEE ALTERNATE JUROR NUMBER 1, MR. BEDNAR, SIR. I'M GOING TO ASK YOU TO STAND UP, AND WE'RE GOING TO ASK YOU TO SIT IN JUROR NUMBER 7'S SEAT. WE EXCUSED A JUROR, AND SO ALTERNATE NUMBER 1, MR. BEDNAR, WILL NOW REPLACE JUROR NUMBER 7 AS A DELIBERATING JUROR. THANK YOU, SIR. AND OUR ALTERNATES CAN SCOOT OVER AND MAKE YOURSELF COMFORTABLE, AND WE'LL CONTINUE WITH OUR TRIAL. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN. OUR JURY IS PRESENT. BEFORE I ASK THE GOVERNMENT IF THEY HAVE ADDITIONAL EXAMINATION OF A WITNESS, I DO WANT TO INQUIRE OF OUR JURY AND OUR ALTERNATES A QUESTION THAT I TOLD YOU I WOULD ASK EACH TIME WE WOULD START EACH DAY, AND THAT IS THAT IT'S IMPORTANT THAT YOU DECIDE THE CASE SOLELY, THIS CASE, SOLELY ON THE EVIDENCE AND THE LAW PRESENTED IN THE COURTROOM.
SO YOU MUST NOT LEARN ANY INFORMATION ABOUT THIS CASE FROM SOURCES OUTSIDE OF THE COURTROOM TO ENSURE FAIRNESS TO ALL PARTIES IN THE TRIAL. I'LL NOW ASK YOU WHETHER OR NOT ANY OF YOU HAVE LEARNED ABOUT OR SHARED INFORMATION ABOUT THIS CASE OUTSIDE OF THE COURTROOM EVEN IF IT WAS ACCIDENTAL? IF ANY OF YOU THINK YOU MAY HAVE DONE SO, WOULD YOU PLEASE RAISE YOUR HAND AND LET US KNOW THAT. I SEE NO HANDS. THANK YOU VERY MUCH, LADIES AND GENTLEMEN. I APPRECIATE YOUR ATTENTION, CONTINUED ATTENTION TO THIS. LET ME ALSO JUST FOR A MATTER OF COMFORT FOR A COUPLE OF OUR JURORS, JUROR NUMBER 11 AND JUROR NUMBER 9, THOSE OF YOU WHO ARE IN THE OUTSIDE SEATS, I THINK THOSE SEATS WILL RAISE IF THAT'S HELPFUL TO YOU. I DON'T KNOW IF YOU'VE FIGURED THAT OUT, BUT IF YOU WOULD LIKE TO RAISE THE SEATING, I THINK THERE'S A BUTTON ON IT THAT WOULD ALLOW YOU TO DO THAT IF YOU WISH. ALSO, IF ANY JUROR HAS ANY DIFFICULTY EITHER SEEING OR HEARING ANY OF THE TESTIMONY, PLEASE RAISE YOUR HAND, LET ME KNOW, AND WE'LL TRY TO CORRECT THAT. SO THANK YOU VERY MUCH. MR. LEACH, DO YOU HAVE A CONTINUING EXAMINATION?
MR. LEACH: WE DO, YOUR HONOR. THANK YOU.
JUDGE DAVILA: ALL RIGHT. THANK YOU. LET'S ASK THE WITNESS TO PLEASE COME IN. ONE THING I DO WANT TO DO WHILE THAT'S HAPPENING, WE'LL HAVE MS. SPIVEY TAKE THE SEAT AGAIN. GOOD MORNING.
SO-HAN SPIVEY: GOOD MORNING.