Spanier Govt Response Binder2

Case 3:12-cr-00918-JM Document 446 Filed 04/25/16 Page 1 of 16
1 LAURA E. DUFFY
United States Attorney
2
JOSEPH J.M. ORABONA
3 Assistant U.S. Attorney
California Bar No. 223317
4
Office of the U.S. Attorney
5 880 Front Street, Room 6293
6 San Diego, California 92101
Tel: (619) 546-7951
7
8 Attorneys for the United States
9
UNITED STATES DISTRICT COURT
10
SOUTHERN DISTRICT OF CALIFORNIA
11
12
UNITED STATES OF AMERICA,

Plaintiff,
13
14
15
16
Case No. 12CR0918-JM
v.
JEFFREY SPANIER,
RESPONSE IN OPPOSITION TO
DEFENDANTS MOTION TO DISMISS
THE INDICTMENT WITH PREJUDICE
Defendant.
17
18
19
The Plaintiff, UNITED STATES OF AMERICA, by and through its counsel,
20 Laura E. Duffy, United States Attorney, and Joseph J.M. Orabona, Assistant United
21 States Attorney, hereby files its Response in Opposition to defendant JEFFREY
22 SPANIERs (Spaniers) Motion to Dismiss the Indictment with Prejudice, with the
23 attached Exhibits 1 through 11. 1
This Response in Opposition is based upon the
24 accompanying memorandum of points and authorities, exhibits, Spaniers Presentence

25 Report (PSR), and the files and records of this case. For all of the following reasons,
26
27
28
Exhibit 1 has been submitted with a motion to seal and order thereon.
1 Spaniers motion to dismiss with prejudice should be denied. The Court should dismiss
2 the indictment without prejudice.
3
PRELIMINARY STATEMENT
This is a complex fraud case involving a stock-loan fraud scheme where the
6 victims suffered actual losses in excess of $80 million. The defendants were originally
7 indicted in March 2012. While it took defense counsel more than a year to prepare to try
8 this complex case, the jury was deadlocked on the charges against Spanier and a mistrial
9 was declared in May 2013. Because a retrial date was set beyond the 70-days provided in
10 the Speedy Trial Act without the requisite findings by the district court excluding time,
11 the Ninth Circuit held that the Speedy Trial Act was violated.
The Ninth Circuit
12 remanded the case for another judge to determine whether the Superseding Indictment
13 should be dismissed with or without prejudice. In making this finding, this court will
14 examine the seriousness of the offense, the facts and circumstances that led to the
15 violation of the Speedy Trial Act, the impact on reprosecution, and whether there was any
16 prejudice to the defendant. The fraud charges are extremely serious in this case. The
17 facts and circumstances show that the delay was not the product of neglect or intentional
18 conduct by the government. The government did not seek the delay for the purpose of
19 securing an immunized witness. In fact, Spaniers counsel contributed to the initial delay
20 in June 2013 and the further delay in August 2013. The impact on reprosecution is
21 favored in light of the publics interest in justice and the victims interest in restitution.
22 Finally, Spaniers contention that he has suffered financial hardship and other out-of23 court impacts on his life does not warrant a finding of prejudice. The record in this case
24 is well-preserved given two sets of trial transcripts and trial exhibits. As such, these
25 factors weigh in favor of dismissal without prejudice.
26 / /
27 / /
28 / /
Response in Opposition
12CR0918-JM
II
RELEVANT FACTUAL/PROCEDURAL BACKGROUND

Spanier Participated in an $80 Million Stock-Loan Fraud Scheme 2
A.
As charged in the Superseding Indictment, Spanier participated in a massive fraud
5 conspiracy, with co-defendants Douglas McClain (McClain) and James Miceli

3
6 (Miceli) in which borrowers (executives or affiliates of publicly traded companies)
7 were fraudulently induced to pledge stock in return for loans. Their fraudulent scheme
4
8 resulted in a loss to the victim-borrowers in excess of $80 million. In reliance on these
9 representations, borrowers entered into loan agreements with these lenders in which the
10 borrowers pledged stock they owned in publicly traded companies as collateral for loans
11 allegedly made by the lenders. Unbeknownst the victim-borrowers, the stock pledged as
12 collateral was sold and used to fund the victims loan or to fund other victims loans
13 similar to a Ponzi scheme. There was no independent source of cash to fund these loans.
14 Spanier and his coconspirators profited substantially from their fraud by pocketing the
15 difference between the sale price of the stock and the amount funded for the loan to the
16 victim-borrower. During the term of the loans, Spanier would collect interest payments
17 from the victim-borrowers, which was used to pay expenses to continue the fraudulent
18 scheme. When a victim-borrower wanted to repay his loan and get his stock back,
19 Spanier falsely promised the borrower that he would soon return the victims stock.
20 Despite repeated requests, borrowers who repaid their loans never received their stock.
21
The United States incorporates by reference herein the transcripts of the jury trial
22 held from December 10, 2013 through December 20, 2013 herein [docket nos. 397-404.]
23 These facts are also supported by the allegations in the Second Superseding Indictment,
incorporated herein by reference and attached as Gov. Ex. 2 to this response.
24
25
26
Tragically, co-defendant Miceli committed suicide in January 2013.
Co-defendant McClain was found to be responsible for restitution totaling

27 $81,731,879.98. See Judgment for McClain [docket no. 276]. This was the intended loss
attributed to the conspiracy. PSR 10.
28
12CR0918-JM
Through companies that Spanier controlled, including a company he controlled
2 with Manuel Bello (Bello), he solicited victim-borrowers to pledge their stocks as

3 collateral for loans funded by other companies he controlled and a company controlled by
4 McClain and Miceli. Spanier pitched these victims by claiming they could borrow
5 substantial cash by pledging their publicly traded stocks as collateral rather than selling
6 them on the open market. This option was attractive because it allowed the victims to
7 obtain much needed cash while retaining the right to receive their stock once their loans
8 were paid in full. Some of the victims were restricted from selling their shares due to
9 securities regulations.
10
Despite the fact that Spanier told the victims their stock would not be sold and that
11 he was merely earning a 5% fee, these representations were false. Spanier omitted the
12 fact that his fees far exceeded the 5% representation. Despite repeated lawsuits and
13 complaints from the victim-borrowers that their stock had been sold, Spanier continued to
14 solicit victim-borrowers and represent that the company controlled by Miceli and
15 McClain had substantial cash to lend. Spanier knew, or was at least willfully blind to the
16 fact, that the stock was being sold.
17
B.
The Procedural History
18
On March 12, 2012, a federal grand jury in the Southern District of California
19 returned a 35-count indictment charging Spanier, McClain, and Miceli with conspiracy,
20 mail fraud, wire fraud and securities fraud. See docket no. 1.
A motion hearing was
21 scheduled for April 23, 2012. See docket no. 24. The hearing was continued to June 18,
22 2012 to obtain a status regarding discovery. See docket no. 54. Another status hearing
23 was scheduled for September 24, 2012. See docket no. 63. At the next hearing, the
24 district court scheduled a jury trial for March 5, 2013 and excluded time under the
25 Speedy Trial Act finding the case to be complex. See docket no. 92; Def. Ex. A.
26 Arguing that the case was complex, with voluminous amounts of discovery, defense
27 counsel appeared for a status hearing on December 14, 2012 and requested that the trial
28 be continued after March 5, 2013. See Gov. Ex. 3. The district court denied the request.
12CR0918-JM
1 See id. At the motion hearing on January 23, 2013, defense counsel had filed motions to
2 continue to the trial and again requested a continuance claiming the case was complex
3 and that they would not be prepared to try the case on March 5, 2013. See Gov. Ex. 4.
4 The district court again denied the request to continue the trial and continued the motion
5 hearing to January 29, 2013. See id. At this hearing, the district court was persuaded by
6 defense counsel for McClain and Spanier that they needed additional time to prepare and
7 continued the trial to May 14, 2013. See Gov. Ex. 5.
8
The jury trial commenced on May 14, 2013, and the government called more than
9 17 witnesses many of whom were from overseas. See docket nos. 217-18. On May 31,
10 the jury returned verdicts against McClain and Spanier. See docket nos. 184-212. A
11 mistrial was declared as to Spanier. See docket no. 213. A retrial date was not set
12 because Spanier wanted to know the numerical divide of the jury which would not be
13 known until the forfeiture proceeding concluded against McClain. See Def. Ex. B. A
14 status hearing was set for June 10, 2013. See id. The forfeiture proceeding against
15 McClain was held on June 4, 2013, and the jury found in favor of the Government. See
16 docket no. 216.
In between the forfeiture proceeding and the status hearing, the
17 Government received allegations of juror misconduct and began an investigation. See

18 Gov. Ex. 6 and 8. Spaniers counsel addressed the forfeiture and juror misconduct issues
19 at the June 2013 hearing. Gov. Ex. 6. The district court, with both parties concurrence,
20 set the retrial date to accommodate Spaniers counsels vacation for October 8, 2013.
21 See id.
Spaniers counsel indicated he was filing a motion to address the juror
22 misconduct investigation and the court set a hearing in August 2013. See id. No such
23 motion concerning the juror misconduct was filed by Spanier. See Gov. Ex. 1; passim
24 docket in this case. The district court held a status hearing on August 19, 2013. Gov. Ex.
25 7. The court was inclined to continue the retrial date by two weeks. Id. The government
26 opposed, but Spaniers counsel indicated he did not oppose in order to have a real
27 vacation. Id. The court reset the retrial date from October 2013 to December 2013.
28 Following the superseding indictment, Spanier filed a motion to dismiss for a Speedy
12CR0918-JM
1 Trial Act violation on November 20, 2013. See docket no. 289. The court heard the
2 motion on December 2, 2013. Gov. Ex. 8. The court denied the motion and the case
3 proceeded to retrial on December 10, 2013. Spanier was convicted and was sentenced to
4 10 years in prison. He was ordered to pay more than $20 million in restitution to victims.
5
Spanier appealed his case. Gov. Ex. 11. The Ninth Circuit held argument in
6 October 2015, and dismissed the case finding a violation of the Speedy Trial Act in
7 January 2016. See id. This court is to decide whether dismissal of the superseding
8 indictment should be with or without prejudice.
9
III
10
MEMORANDUM OF POINTS & AUTHORITIES
11
A.
The Legal Standard
12
A violation of the Speedy Trial Act requires dismissal of the indictment upon the
13 defendants motion. 18 U.S.C. 3162(a)(2). A district court has broad discretion

14 whether to dismiss with or without prejudice for violation of the Speedy Trial Act.
15 United States v. Jordan, 915 F.2d 563, 566 (9th Cir. 1990) (citation omitted). That
16 discretion is to be guided by the following factors in particular:
17
18
[1] the seriousness of the offense; [2] the facts and circumstances of the case
which led to the dismissal; and [3] the impact of a reprosecution on the
administration of [the STA] and on the administration of justice.
19
20 Id. (quoting 18 U.S.C. 3162(a)(2)). The Supreme Court has explained that Congress
21 intended the presence or absence of prejudice to the defendant to be a fourth factor
22 relevant to the determination. United States v. Taylor, 487 U.S. 326, 333-34 (1988).
23
24
25
B.
The Court Should Dismiss the Indictment Without Prejudice

1.
Seriousness of the Offense
Mail fraud, wire fraud, and securities fraud are serious offenses, especially in light
26 of the maximum sentences proscribed by Congress. See, e.g., United States v. Treadwell,
27 593 F.3d 990, 1011 (9th Cir. 2010); United States v. Koerber, 813 F.3d 1262, 1274 n.19
28 (10th Cir. 2016); United States v. Howard, 218 F.3d 556, 561 (6th Cir. 2000); United
12CR0918-JM
1 States v. Koory, 20 F.3d 844, 847 (8th Cir. 1994); United States v. McCrudden, 222 F.
2 Supp.2d 352, 355 (E.D.N.Y. 2002). Spanier was charged with 19 serious crimes. The
3 Superseding Indictment charged Spanier with: (1) one count of conspiracy to commit
4 mail fraud, wire fraud, and securities fraud supported by 19 overt acts in violation of
5 18 U.S.C. 371; (2) six counts of mail fraud in violation of 18 U.S.C. 1341; (3) eleven
6 counts of wire fraud in violation of 18 U.S.C. 1343; (4) one count of securities fraud in
7 violation of 15 U.S.C. 78j(b) and 78ff; and (5) criminal forfeiture of property and
8 millions of dollars. Each count of mail fraud, wire fraud and securities fraud carries the
9 following maximum penalties: 20 years in prison, $250,000 fine, 3 years of supervised
10 release, criminal forfeiture, and mandatory restitution for the victims. The conspiracy
11 charge has maximum penalties of 5 years in prison, $250,000 fine, 3 years of supervised
12 release, criminal forfeiture, and mandatory restitution for the victims. The district court
13 sentenced Spanier to 10 years in prison and determined that restitution totaled
14 $20,669,379.98. See docket no. 369. In light of the number of serious offense charged,
15 the maximum penalties for each offense, the restitution ordered against Spanier
16 ($20 million), and the sentence imposed (10 years in prison), this case is extremely
17 serious. To argue otherwise, as Spanier has done in his motion, is simply meritless.
18
The Sentencing Guidelines are instructive on measuring the seriousness of a fraud
19 case by the amount of loss. In particular, the Sentencing Commission has expressly
20 concluded that in the case of fraud, loss serves as a measure of the seriousness of the
21 offense and the defendants relative culpability and is a principal factor in determining
22 the offense level under [USSG 2B1.1 cmt. backd.] The Ninth Circuit concurs with this
23 rationale. See Treadwell, 593 F.3d at 1011. Here, the intended loss suffered by the
24 victim-borrowers as a result of the conspiracy which Spanier participated exceeded $80
25 million making this case extremely serious. PSR 10.
26
Spanier, without citation to a single case, argues that this was just an economic
27 crime and that it was not that serious. Def. Mot. 7-8. This argument is meritless in light
28 of the cases cited above. Moreover, this was not the run-of-the-mill fraud schemes it
12CR0918-JM
1 was sophisticated and complex. It involved the pledging of publicly traded securities in
2 exchange for loan agreements. The scheme extended over a 7-year period (2002-2009).
3 Even when Spanier was informed through lawsuits and complaints that the stock was
4 being sold, he endeavored to continue soliciting victim-borrowers and stealing their
5 money. Other courts have agreed that these types of complex fraud schemes are serious
6 crimes. See, e.g., United States v. Koerber, 813 F.3d 1262, 1274-75 (10th Cir. 2016). It
7 is the allegations in the indictment that factor into the seriousness of the offense; the
8 strength of the allegations or of the evidence against the defendant is irrelevant to this
9 factor. See 18 U.S.C. 3162(a)(2); Koerber, 813 F.3d at 1275 (citing United States v.
10 Becerra, 435 F.3d 931, 936-37 (8th Cir. 2006)).
11
Spanier argues that the first jury struggled with issues which resulted in a mistrial
12 somehow diminishes the seriousness of the offense. Def. Mot. 8. Not true. The fact that
13 the jury in the first trial against Spanier was unable to reach a unanimous verdict does not
14 diminish the seriousness of the charges. See United States v. Thyfault, 2010 WL 2025376
15 (N.D. Ill. 2010) (unpublished).
16
Based on the foregoing, the offenses against Spanier were serious, and therefore,
17 this factor weighs in favor of dismissal without prejudice.

18
19
2.
Facts and Circumstances Which Led to Dismissal
In analyzing this factor, the court may consider whether there was a demonstrably
20 lackadaisical attitude on the part of the government attorney in charge of the case or a
21 pattern of dilatory practices on the part of the government. Taylor, 487 U.S. at 338-39.
22 That did not happen in this case. The government attorneys were neither lackadaisical
23 nor dilatory about setting trial dates. For example, during the hearings in December and
24 January 2013, when the first trial was being set, the government repeatedly informed the
25 court that it was prepared to go to trial on the original date set March 5, 2013. See Gov.
26 Ex. 3, 4, and 5. Moreover, when the mistrial was declared, there is no evidence in the
27 record that the government intentionally or in bad faith suggested a retrial date in
28 September 2013. See Def. Ex. B. In fact, the government attorney merely stated that she
12CR0918-JM
1 was thinking of a retrial date in September. See id. at 241.
Nevertheless, the Ninth
2 Circuit held that this mere suggestion of a retrial date beyond the 70-days warranted
3 dismissal. See Def. Ex. G.
But this does not end this courts analysis of the complete facts and circumstances
5 that led to dismissal. This court should also consider the reasons for the delay, defense
6 counsels own illicit contribution to the delay, and the length of the delay. See Bloate v.
7 United States, 559 U.S. 196 (2010); United States v. Fountain, 840 F.2d 509, 513 (7th
8 Cir. 1988); and United States v. Clymer, 25 F.3d 824 (9th Cir. 1994).
Here, the reasons for the delay were to accommodate defense counsels pre-paid
10 vacation and for counsel to file motions associated with the forfeiture and juror
11 misconduct issues. See Gov. Ex. 6 and 8. In addition, the trial transcripts had not yet
12 been prepared, and it is clear from the record that Spaniers counsel had not yet
13 completed his review of the first trial transcripts by August 8, 2013. See Exhibit 1
14 (sealed). Lastly, the government and the district court did not consider the complexity of
5
15 the case to have dissipated with the close of the first trial.
Spaniers counsel contends that the purpose of the delay was to secure Bello as a
16
6
17 witness. Def. Mot. 9.
This is simply untrue.
The record reflects that Bello was
18
5
25
Spaniers counsel relies on the September minute order. This reliance is

misplaced. He argues that the complexity of the case ended on January 23, 2013 because
that is the minute order excluded time between September 24, 2012 and January 23, 2013
on the basis of complexity. Def. Ex. A. However, the complexity of the case did not
cease to exist after January 23, 2013. Spaniers counsel contended that the case was
complex (i.e., voluminous discovery; complex issues; witnesses from out of the country)
at the hearings in December 2012 and January 2013 when he was requesting that the
original trial date be continued. Gov. Ex. 3, 4, and 5. Had Spaniers counsel believed the
case was no longer complex after January 23, 2013, there would have been no reason to
continue the first trial from March 5, 2013 to May 14, 2013.
26
19
20
21
22
23
24
Contrary to Spaniers contention, Bello was not a cooperating witness. He was a

27 witness that required a grant of immunity before he would testify. This is an important
distinction with a substantial difference.
28
12CR0918-JM
1 identified as a witness in the first trial in May 2013. See Gov. Ex. 10 (witness no. 34).
2 Spanier was provided with the discovery well in advance of the second trial to enable him
3 to properly prepare his cross-examination of Bello without a need for a mid-trial recess.
4 Furthermore, Bello was one of many percipient witnesses in the case. See id. Even
5 though Bello was not called to testify in the first trial, he was called to testify in the
6 second trial. Yet, Spanier has failed to identify how Bellos testimony prejudiced him. In
7 fact, in Spaniers closing argument, he argued that Bello wouldnt even say that he
8 conspired with Mr. Spanier or Mr. Spanier did anything wrong. Gov. Ex. 11.
9
Spanier contends his case is similar to United States v. Hall, 181 F.3d 1057 (9th
10 Cir. 1999). However, Hall is inapplicable here. In Hall, the district court granted ends11 of-justice continuances to Halls co-defendant in order to allow him to negotiate a plea
12 agreement with the United States, which included testifying against Hall. Id. at 1060-64.
13 Since Hall was a co-defendant, his Speedy Trial clock was carried along with his co14 defendant while the plea negotiations were conducted. Id. at 1059-60. The Ninth Circuit
15 noted that the district court was on notice that Hall wished a speedy trial. Id. at 1063.
16 The Ninth Circuit noted that the district court should have severed the trial. Id. In
17 contrast, Bello was not co-defendant who carried Spanier along. Spanier never told the
18 district court that he wished a speedy trial (as discussed below). As such, this reason
19 does not weigh in favor of dismissal with prejudice.
20
The record is clear that Spanier did not assert his desire for a speedy trial. A
21 defendant who waits passively while the time runs has less claim to dismissal with
22 prejudice than does a defendant who demands, but does not receive, prompt attention.
23 Fountain, 840 F.2d at 513. The defendants own illicit contribution to the delay is a
24 consideration in analyzing this factor. See Bloate, 559 U.S. at 215 (citing Taylor, 487
25 U.S. at 343)). Here, Spaniers counsel contributed to the delay by acquiescing and
26 agreeing to October 8 retrial date at the hearing in June 2013. Gov. Ex. 6 at 189. In fact,
27 Spaniers counsel contended that he was willing to retry this case any time after October
th
28 4 . See id. Moreover, Spaniers counsel admits, as he must, that he was more than
10
12CR0918-JM
1 pleased to continue the retrial from October 2013 to December 2013 so he could have a
2 real vacation. Def. Mot. 4 n.3; Gov. Ex. 7 at 178-180. In fact at the August 19, 2013
3 hearing, the government opposed a continuance of the retrial from the October date and
4 the district court agreed to leave the retrial date as set. Gov. Ex. 7 at 179. Only then did
5 Spaniers counsel comment that he wouldnt mind a real vacation, as opposed to
6 starting up the day he returned. Id. at 179-180. Thereafter, the district court moved the
7 retrial to December 10, 2013. Id. Spaniers counsel acquiesced to the delays and
8 contributed to them.
9
Spanier argues that he requested an earlier date.
Def. Mot. 3.
This is a
10 misrepresentation of the record because counsel is taking his own statement out of
11 context and not referring to his statement in its entirety. The complete statement made by
12 Spaniers counsel shows he requested a date earlier in September, not earlier than the
13 date when the Speedy Trial clock would have run. See id. The exchange was as follows:
14
THE COURT:
. . . Now with regards to Mr. Spanier, I dont know if the
15
defense is going to retry this or not or what your pleasure is. Do
16
you need additional time to decide, or what would you like for
17
me to do? I can set it for - - well, what is it the government
18
wants to do?
19
MS. DEVINE:
We were thinking of a retrial date in September.
20
THE COURT:
Okay.
Do you
have any - -
21
22
Mr. Scott, is September okay with you?
MR. SCOTT:
I have a - - I have a pre-planned vacation, starting on the - - on
23
Saturday the 21st, that corresponds with my childrens fall
24
break. And thats the proverbial prepaid tickets and everything.
25
That is two weeks, starting September 21st. If its earlier in
26
September, then Im at the Courts service.
27 See Def. Ex. B at 241 (emphasis added). Spaniers counsel, too, was requesting a retrial
28 date outside of the 70-day clock.
11
12CR0918-JM
Following the comment about counsels pre-planned vacation and retrying the case
2 earlier in September, the government attorney responded by saying: In light of that,

3 and not wanting to impinge on Mr. Scotts vacation, or some period thereafter, if Court
4 wanted to place it sometime in October, we have no opposition to that. Id. at 241-42.
5 Spaniers counsel responded, That would be outstanding, Your Honor. Perhaps mid6 October on, Im wide open. Id. at 242. The government attorney estimated the retrial
7 would take approximately four to five days.
Id.
Spaniers counsel then made a
8 suggestion:
9
MR. SCOTT:
This is just a suggestion, your Honor. But it strikes me that
10
often times, retrials and whether there is a retrial and
11
negotiations in the interim often depend on the numerical divide
12
of the jury. Perhaps if we set a status for after the smoke
13
cleared, and after the forfeiture proceedings for Mr. McClain
14
have taken place, perhaps the parties might have more
15
collective insight on how to proceed. Im not trying to get
16
ahead of myself, I just think we might have more information --
17
THE COURT:
youre saying?
18
19
You want me to hold off setting a date for retrial; is that what
MR. SCOTT:
That is my suggestion. Perhaps if we set a status in a week or
20
ten days, after the smoke clears from the jury, it might be a
21
more fruitful discussion, is my suggestion.
22 See id. at 243. As this court can discern from the plain record above, Spaniers counsel
23 did not request an earlier date that was within the Speedy Trial clock. Rather, when the
24 district court was discussing setting a retrial date, it was Spaniers counsel that suggested
25 a status hearing in ten days after the smoke clears from the jury. Id. Spanier was not
26 asserting his desire for a speedy trial. These facts favor dismissal without prejudice.
27
The Supreme Court has held that the length of the delay is a relevant consideration
28 in determining whether an indictment should be dismissed with or without prejudice.

12
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1 Taylor, 487 U.S. at 340; see also United States v. Clymer, 25 F.3d 824, 831-32 (9th Cir.
2 1994).
In Clymer, the indictment was pending for 522 days and giving the
3 government the benefit of every doubt, about five months of this period was not
4 excludable under the Act. The Ninth Circuit held that this amount of delay supported
5 dismissal with prejudice. Unlike Clymer, the delay in this case was not as excessive.
6 Assuming the 70-day clock began to run on the date the mistrial was granted (May 31,
7 2013), the clock ran on August 9, 2013. The district court held a hearing 10 days later
8 and reset the existing trial date (October 8, 2013) which was 60 days later to
9 December 10, 2013. This was 63 days after October retrial date an illicit delay
10 contributed to by Spanier. Gov. Ex. 7 at 178-180.
11
Finally, Spanier contends that the governments positions contributed to the case
12 remaining on appeal for 15 months, and that this further exacerbat[ed] the original
13 delay. Def. Mot. 9. The cases cited by Spanier United States v. Lopez-Avila, 678 F.3d
14 955 (9th Cir. 2012) and United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993) do not
15 stand for the propositions for which they are cited. First, neither case addresses a
16 violation of the Speedy Trial Act. Rather, these cases address prosecutorial misconduct.
17 Nowhere does it state in Kojayan that the governments continued failure to appreciate
18 violation on appeal can be basis for dismissal with prejudice). Kojayan dealt with a
19 clear cut misstatement by the government to the jury during closing argument that a
20 witness who had a cooperation agreement was not in fact cooperating with the
21 government. 8 F.3d at 1318-22. Moreover, Lopez-Avila dealt with a situation where the
22 government did not read the complete question to the jury and insinuated the defendant
23 was lying during her testimony. 678 F.3d at 958. Neither situation exists here. The
24 government did not make any misstatements to the district court or to the Ninth Circuit in
25 opposing the motion to dismiss and defending the case on appeal. More importantly, no
26 such finding was made by the Ninth Circuit. Def. Ex. G.
27
The delay caused by the case pending on appeal is not a factor to be considered in
28 the dismissal calculus. No case holds as much. Even should this court consider this a
13
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1 factor, both parties contributed to the delay on appeal. First, Spanier filed the appeal
2 (which was a decision he made). Second, Spaniers counsel requested a delay to file both
3 his opening brief and reply brief. Gov. Ex. 9. Third, Spanier did not oppose the
4 governments request for an extension to file its answering brief. See id.
At the very
5 least, this is again, another situation where Spaniers counsel contributed to the delay. It
6 does not favor dismissal with prejudice.
7
Based on the foregoing considerations, the facts and circumstances that led to the
8 Speedy Trial Act violation and dismissal weigh in favor of dismissal without prejudice.
9
10
3.
Impact of Reprosecution on the Administration of Justice
In evaluating this factor, the court will consider whether there was any bad faith or
11 pattern of neglect by the government.
Here, there was no bad faith or intentional
12 conduct. The governments suggestion to retry the case in September 2013 was based
13 upon its belief that the complexity of the case did not dissipate after the first trial. See
14 United States v. Hernandez, 863 F.2d 239, 244 (2d Cir 1988) (holding that in the
15 absence of a factually supported finding of bad faith or pattern of neglect by the local
16 United States Attorney, an isolated unwitting violation of the Speedy Trial Act cannot
17 support a decision to dismiss with prejudice). Second, Spanier has set forth no evidence
18 that there was a pattern of neglect by the government with respect to prosecuting
19 Spaniers case because no such evidence exists. This was an unintentional and isolated
20 violation of the Speedy Trial Act in this case, which does not support dismissal with
21 prejudice to further the administration of justice.
22
Spanier has not argued that the violation of the Act prejudiced his ability to prepare
23 for trial (or retrial), and he does not address the Acts purpose of protecting societys
24 interests. This is an important consideration the interests of the public and the victims
25 in this case.
The Seventh Circuit explained that [t]he penalty imposed on the
26 prosecutor (and the rest of society) by dismissing with prejudice rises with the
27 seriousness of the crime. Fountain, 840 F.2d at 512. The Speedy Trial Act seeks to
28 avoid unduly impairing the enforcement of criminal laws by allowing for dismissal
14
12CR0918-JM
1 without prejudice in appropriate cases. This is such a case. Moreover, dismissal without
2 prejudice is not a toothless sanction: it forces the Government to obtain a new
3 indictment if it decides to reprosecute, and it exposes the prosecution to dismissal on
4 statute of limitations grounds. Zedner v. United States, 547 U.S. 489, 499 (2006).
5 Dismissing the indictment without prejudice therefore imposes an additional burden on
6 the government, and it will not undermine the administration of the Speedy Trial Act or
7 of justice. This factor weighs in favor of dismissal without prejudice.
8
9
4.
The Absence of Prejudice to the Defendant
The length of the delay in some ways is closely related to the issue of prejudice to
10 the defendant. The longer the delay, the greater the presumptive or actual prejudice to the
11 defendant, in terms of his ability to prepare for trial or the restrictions on his liberty.
12 Taylor, 487 U.S. at 340 (noting that the absence of prejudice weighs in favor of dismissal
13 without prejudice). The delay in this case has not impaired Spaniers ability to prepare
14 for trial or restricted his liberty. The evidence in this case is preserved. See United States
15 v. Smith, 576 F.3d 681, 690-91 (7th Cir. 2009) (holding that an argument that defendant
16 suffered prejudice has less force where the defendant went to trial and he has the trial
17 record with which to work).
There are transcripts from two trials with the witnesses
18 statements. See id. The witnesses are available. See id. The trial exhibits and discovery
19 is preserved. See id. Spanier is not detained. See United States v. Killingsworth, 507 F.3d
20 1087, 1091 (7th Cir. 2007) (reversing the district courts dismissal with prejudice due to a
21 violation of the Speedy Trial Act, eve where the defendant was detained during the
22 violation period); United States v. Johnson, 29 F.3d 940, 946 (5th Cir. 1994) (finding that
23 the facts and circumstances of the case which included a violation of the Act by 118
24 days, during which time the defendant had been detained pointed slightly in favor of
25 dismissal without prejudice). He has remained on bond during the first trial, the retrial,
26 and the appeal. Spanier remains currently on bond, and therefore, his liberty has not been
27 restricted. The absence of bad faith by the government and the lack of prejudice to the
28
15
12CR0918-JM
1 defendant nudge this factor in favor of dismissal without prejudice. Killingsworth, 507
2 F.3d at 1091.
3
Spanier contends that he has suffered financial hardship and other out-of-court
4 consequences.
However, the victims have suffered much more.
Spanier fails to
5 acknowledge that some of the victims that testified that the illegal sale of their stock
6 affected their retirement and caused economic hardship. The illegal sale of publicly
7 traded stock involving millions of dollars also has a serious economic impact on the
8 innocent investors in the marketplace. When balancing these competing prejudices, this
9 factor does not support dismissal with prejudice.
10
IV
11
CONCLUSION
12
Dismissal without prejudice is appropriate where as here Spanier has been
13 accused of serious crimes, has not been prejudiced, the government has not acted in bad
14 faith, the impact on reprosecution is favored to protect society and the victims, and the
15 circumstances of leading to the violation of the Act are unlikely to recur. Under these
16 circumstances, the purpose of the Act would not be served by imposing the maximum
17 sanction for this violation. For all the foregoing reasons, the United States respectfully
18 requests that the Court deny dismiss the Indictment without prejudice.
19
DATED: April 25, 2016
Respectfully submitted,
20
LAURA E. DUFFY
21
22
/s/Joseph J.M. Orabona

JOSEPH J.M. ORABONA
Assistant United States Attorney
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25
26
27
28
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FOR THE SOUTHERN DISTRICT OF CALIFORNIA
3
4
PLAINTIFF,
5
V.
6
DOUGLAS MCCLAIN, JR., ET AL.,
7
8
DEFENDANT.
. . . . . . . . . . . . . . . .
.
.
.
.
.
.
.
.
.
.
NO. 12-CR-0918
DECEMBER 14, 2012
9:09 A.M.
SAN DIEGO, CALIFORNIA
9
10
TRANSCRIPT OF STATUS HEARING

BEFORE THE HONORABLE ROGER T. BENITEZ
UNITED STATES DISTRICT JUDGE
11
12
APPEARANCES:
13
FOR THE PLAINTIFF:

14
15
16
FOR THE DEFENDANT,

JAMES MICELI:
17
18
FOR THE DEFENDANT,

JEFFREY SPANIER:
19
20
FOR THE DEFENDANT,

DOUGLAS MCCLAIN:
21
22
23
24
25
COURT REPORTER:
U.S. ATTORNEY'S OFFICE

BY: FAITH DEVINE, ESQ.
880 FRONT STREET, ROOM 6293
SAN DIEGO, CALIFORNIA 92101
WARREN & BURSTEIN
BY: JEREMY WARREN, ESQ.
501 WEST BROADWAY, SUITE 240
LAW OFFICE OF TIMOTHY SCOTT
BY: TIMOTHY SCOTT, ESQ.
1350 COLUMBIA STREET, SUITE 600
LAW OFFICES OF MARK ADAMS
BY: MARK ADAMS, ESQ.
964 FIFTH AVENUE, SUITE 335
DEBORAH M. O'CONNELL, RPR, RMR, CSR
333 W. BROADWAY, ROOM 420
SAN DIEGO, CALIFORNIA, 92101
REPORTED BY STENOTYPE, TRANSCRIBED BY COMPUTER
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SAN DIEGO, CALIFORNIA, DECEMBER 14, 2012, 9:09 A.M.
2
* * * *
3
4
THE COURT:
GOOD MORNING.
THE CLERK:
ONE ON CALENDAR, CASE NO. 12-CR-0918, USA VS.
JAMES MICELI, ET AL., STATUS HEARING.
MR. ADAMS:
GOOD MORNING, YOUR HONOR.
BEHALF OF DOUGLAS MCCLAIN.
HAVING BEEN WAIVED.
10
11
MR. WARREN:
MR. SCOTT:
JEREMY WARREN, FOR
TIM SCOTT, FOR MR.
SPANIER, ALSO NOT PRESENT, PER THE COURT'S ORDER.
14
15
HE'S NOT PRESENT, HIS PRESENCE
MR. MICELI.
12
13
MARK ADAMS, ON
MS. DEVINE:
FAITH DEVINE, ON
BEHALF OF THE UNITED STATES.
16
MR. ADAMS:
YOUR HONOR, THANK YOU FOR PUTTING THIS ON
17
CALENDAR TODAY.
WE'VE BEEN WANTING TO COME IN SINCE EARLY
18
DECEMBER AND TALK TO YOUR HONOR ABOUT THE TRIAL DATE AND MOTION
19
DATES.
20
CASE.
21
THAT HAVE TAKEN PLACE REALLY ALL AROUND THE COUNTRY.
22
THE WITNESSES ARE ALL OVER THE COUNTRY, AS WELL AS ALL OVER THE
23
WORLD, SOME IN MEXICO CITY, SOME IN CHINA, AND SO ON.
24
25
THIS IS, AS YOUR HONOR KNOWS, IS A VERY COMPLICATED

IT HAS A LONG HISTORY.
THERE ARE A NUMBER OF EVENTS

A LOT OF
THERE HAS COME A CONFLICT IN OUR ABILITY TO GET AS READY

AS WE'D LIKE TO BE, AS WE NEED TO BE UNDER THE CONSTITUTION.
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MR. SCOTT AND I HAVE BEEN REPRESENTING A CLIENT, A CLIENT,
CORPORATION, AND CLIENT INDIVIDUAL SINCE -- IN HIS CASE,
OCTOBER 1ST, 2011.
REPRESENTING THAT COMPANY AND THAT PERSON IN FEBRUARY OF 2011.
IN MY SITUATION THERE, I STARTED
THE CASE WAS INDICTED, AND THE INDICTMENT WAS UNSEALED,
AND WE WERE ARRAIGNED ON THAT INDICTMENT ON AUGUST 23RD, I
THINK IS THE DATE OF THIS YEAR, AND ASSIGNED TO JUDGE BURNS.
WE WENT TO JUDGE BURNS FOR MOTIONS ON OCTOBER 9TH.
SHORT-SET US.
AND HE
WE'D ASKED FOR A STATUS HEARING EITHER AT THE
10
END OF THE YEAR OR EARLY NEXT YEAR GIVEN THE AMOUNT OF
11
DISCOVERY AND THE AMOUNT OF THE SERIOUS ALLEGATIONS IN THAT
12
CASE.
13
14
15
THE COURT:
TELL ME ABOUT THE ALLEGATIONS IN THAT CASE.
WHAT IS IT ABOUT?
MR. ADAMS:
IT IS A CONSPIRACY TO COMMIT WIRE FRAUD AND
16
BRIBERY OF PUBLIC OFFICIALS AND THEN SEVERAL SUBSTANTIVE COUNTS
17
OF BRIBERY OF PUBLIC OFFICIALS.
18
WITNESSES AND A LOT OF MOVING PARTS.
19
FOR A JANUARY TRIAL DATE.
20
WHAT WE'VE TRIED TO DO IS MANAGE BOTH CASES AS EFFECTIVELY AS
21
WE COULD AND MOVE FORWARD WITH PREPARATIONS IN BOTH CASES.
22
IT BECAME PRETTY APPARENT AFTER WORKING -- I CAN SPEAK FOR
23
MYSELF.
24
YOUR HONOR SET THIS TRIAL DATE, WITH THE EXCEPTION OF ONE OR
25
TWO DAYS.
AND THERE ARE A LOT OF

AND JUDGE BURNS SET US
THAT WAS ON OCTOBER 9TH.
AND SO
BUT
I'VE BEEN WORKING, BASICALLY, SEVEN DAYS A WEEK SINCE
I EVEN FILED THINGS ON THANKSGIVING EVENING.
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ALL OF THAT HAVING BEEN SAID, IT OCCURRED TO ME IN EARLY
DECEMBER, THERE WERE SIMPLY NOT ENOUGH MINUTES IN THE DAY TO
GET BOTH CASES READY AND TO MANAGE OTHER CASES THAT WE HAVE ON
OUR DOCKETS.
HAVE A STATUS HEARING LIKE THIS, TO TALK WITH YOUR HONOR ABOUT
THOSE DATES.
AND SO I CALLED YOUR CLERK, ASKING TO COME IN AND
WE WERE GIVEN THE JANUARY TRIAL DATE, AND I THINK JANUARY
BEING BEFORE MARCH, WE FELT WE HAD TO GET READY FOR THAT CASE.
AND THE BULK OF MY EFFORTS I KNOW HAVE BEEN DEDICATED TO THAT.
10
THIS CASE HAS NOT BEEN OFF THE DOCKET.
IN FACT, ON
11
NOVEMBER 13TH, I FILED A CJA FUNDING REQUEST WITH YOUR HONOR,
12
AND I HAVEN'T FOLLOWED UP ON THAT, BUT I HAVEN'T HEARD
13
ANYTHING, EITHER.
14
THAT NEEDS TO BE RESOLVED IMMEDIATELY SO I CAN MOVE FORWARD
15
WITH CONTINUED PREPARATION.
SO THAT IS PENDING, AND THAT IS SOMETHING
16
THE COURT:
WHEN DID YOU FILE THAT?
17
MR. ADAMS:
NOVEMBER 13TH.
AND I DON'T WANT TO GET INTO
18
THE SUBSTANCE OF IT, BUT IT'S A FUNDING REQUEST FOR NECESSARY
19
DEFENSE SERVICES, ANCILLARY SERVICES IN THE CASE.
20
21
THE COURT:
I DON'T HAVE IT.
DID YOU DELIVER IT TO MY
CHAMBERS, IS THAT WHAT YOU DID?
22
MR. ADAMS:
NO.
I'VE ALWAYS -- I TOOK IT TO THE CLERK'S
23
OFFICE.
BUT THAT'S ANOTHER THING.
I CAN DELIVER THAT TO
24
CHAMBERS LATER OR GIVE YOU A COPY OF IT RIGHT NOW IF YOU'D
25
LIKE.
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SO ALL THINGS HAVING BEEN SAID, WE CAME TO THE REALIZATION
IN EARLY DECEMBER THAT THERE WAS NO WAY WE COULD GO FORWARD AND
HANDLE BOTH CASES.
THE OTHER CASE, THE CASE IN FRONT OF JUDGE BURNS, THERE WAS NO
WAY WE COULD GET THAT READY BY THE JANUARY TRIAL DATE.
WE WENT IN AND ASKED JUDGE BURNS FOR A COUPLE MORE MONTHS TO
GET THAT CASE READY.
IN FACT, WE CAME TO THE REALIZATION THAT IN
AND SO
IT IS NOW SET -- IT GOT SET ON FEBRUARY 12TH, WHICH IS
WHAT, I THINK, RAISED YOUR HONOR'S CONCERN ABOUT THIS DATE THAT
10
WE NEED TO MOVE UP ON THE MARCH 5TH, THE DATE THAT IS SET HERE.
11
AND SO WE WENT BACK TO JUDGE BURNS, AND IT'S BEEN MOVED
12
BACK TO THE 20TH OF FEBRUARY I THINK IS THE DATE WE'RE ON NOW
13
FOR THAT TRIAL.
14
STOPPED DOING EVERYTHING IN EVERY OTHER CASE AND CONTINUED TO
15
WORK SEVEN DAYS A WEEK, THERE IS NO WAY I COULD BE MEANINGFULLY
16
EFFECTIVE FOR MY CLIENT IN THIS MCCLAIN CASE.
17
TO DO, AND EVERY EVENT THAT HAPPENED IN THIS CASE, EVERY
18
TRANSACTION, EVERY ONE THAT I'VE SCRATCHED THE SURFACE OF IN
19
TERMS OF INVESTIGATION, TURNS UP ANCILLARY LITIGATION IN --
20
OFTENTIMES, IN THE SAME TIME PERIOD.
21
AT TODAY, THERE IS A LAWSUIT FILED ALLEGING ALMOST THE SAME
22
KIND OF CONDUCT AND RAISING SECURITIES FRAUD CONCERNS AND THAT
23
SORT OF THING IN NEVADA.
24
25
SO EVERYTHING HAVING BEEN SAID, EVEN IF I
THERE IS SO MUCH
ONE OF THE CASES I LOOKED
SO ALL OF THESE UNDERLYING TRANSACTIONS ARE GOING TO HAVE

OTHER COMPLAINING PARTIES THAT HAVE TO BE INTERVIEWED AND
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TALKED TO.
FACT, THE MAIN -- ONE OF THE LARGEST TRANSACTIONS, THE
$23 MILLION TRANSACTION, IS OUT OF MEXICO CITY.
IS IN MEXICO CITY, AND THAT IS WHERE ALL THE WITNESSES ARE.
AND SO THERE IS A LOT OF WORK THAT NEEDS TO BE DONE THERE TO
GET THIS CASE READY FOR TRIAL.
AND THEY'RE LITERALLY ALL OVER THE COUNTRY.
IN
THAT COMPANY
SO ALL OF THAT HAVING BEEN SAID, THE LONG AND SHORT OF IT
IS, THERE IS NO WAY THAT I CAN BE READY TO GO TO TRIAL AND
DEFEND DOUG MCCLAIN IN THE WAY HE SHOULD BE DEFENDED ON
10
MARCH 5TH.
11
THE COURT:
MR. WARREN, MR. SCOTT.
12
MR. SCOTT:
YOUR HONOR, I JOINED MR. ADAMS' MOTION TO
13
CONTINUE THE SPANIER TRIAL DATE.
14
TOO, CANNOT BE CONSTITUTIONALLY EFFECTIVE BY MARCH 5TH.
15
TO ASSURE THE COURT THAT I'VE BEEN MAKING EVERY EFFORT TO
16
MANAGE BOTH OF THESE DIFFICULT AND COMPLEX CASES.
17
CORRECTLY SAID, I REPRESENTED THE OTHER LADY ON WHAT I'LL REFER
18
TO AS THE NAVY CASE, MEANING THE CASE IN FRONT OF JUDGE BURNS,
19
SINCE OCTOBER OF 2011.
20
PRE-INDICTMENT SETTING IN DECEMBER, JANUARY OF 2011, SLASH,
21
2012.
22
23
AND THE REASON IS THAT I,

I WANT
AS MR. ADAMS
AND THIS CASE, I CAME TO IN A
AND THEN THIS CASE WAS INDICTED IN APRIL.

BUT THE NAVY CASE WAS THEN INDICTED IN AUGUST.
AND AS
MR. ADAMS SAID --
24
THE COURT:
WAIT.
THIS CASE, OUR CASE, WAS INDICTED WHEN?
25
MR. SCOTT:
THIS CASE WAS INDICTED -- I THINK THE
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INDICTMENT WAS UNSEALED IN MARCH OF 2012, AND MR. SPANIER
FINALLY ARRIVED, VIA RULE 5, FROM FLORIDA IN APRIL.
THE COURT:
THIS CASE WAS INDICTED WHEN?
MR. SCOTT:
THE OTHER ONE WAS INDICTED IN AUGUST.
HOWEVER, I HAD REPRESENTED THAT CLIENT SINCE OCTOBER OF 2011,
THE NAVY CLIENT.
2011 OR JANUARY 2012.
8
9
AND I REPRESENTED THIS CLIENT SINCE DECEMBER
SO THIS CASE WAS INDICTED FIRST, NO QUESTION ABOUT IT.

BUT MY POINT IS SIMPLY THAT THE OTHER ONE WAS ALSO A
10
PREEXISTING CASE.
I KNOW, PERHAPS, THE COURT IS THINKING, AND
11
I'M COGNIZANT THAT THE COURT SAID, YOU HAVE TO TRY TO CONTROL
12
YOUR CALENDARS.
13
DON'T TAKE ON BOTH CASES.
14
BOTH CASES.
15
I'VE NOT TAKEN AN APPOINTED CASE.
16
APPOINTMENTS IN THIS COURTHOUSE.
17
HERE TWO WEEKS AGO ON A 13 --
AND I KNOW THE COURT IS MAYBE THINKING, WELL,

WELL, THE POINT IS, I ALREADY HAD
AND I ALSO WANTED TO SHARE WITH THE COURT THAT

I'VE STOPPED TAKING
THE COURT MIGHT RECALL, I WAS
18
THE COURT:
RIGHT.
19
MR. SCOTT:
I HAD TO DECLINE THE APPOINTMENT.
20
APPOINTED MR. ZUGMAN.
21
COURT IS, WE'VE BEEN DOING ALL WE CAN TO MANAGE A COMPLEX
22
WHITE-COLLAR JUDGE BURNS CASE AND A COMPLEX WHITE-COLLAR JUDGE
23
BENITEZ CASE.
24
IT WOULD BE ONE THING IF WE SAID -- IF WE'D ALL STOOD HERE --
25
THE COURT
SO WHAT I'M TRYING TO SHARE WITH THE
I THINK IT BEARS NOTE THAT WE DIDN'T -- I THINK
THE COURT:
WHEN WAS JUDGE BURNS CASE SET FOR TRIAL?
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MR. SCOTT:
IT WAS ORIGINALLY SET FOR JANUARY 15TH.
THE COURT:
SO YOU WEREN'T READY FOR THAT ONE, SO IT GOT
CONTINUED?
MR. SCOTT:
IT DID.
THE COURT:
ALL RIGHT.
MR. SCOTT:
IT GOT CONTINUED TO FEBRUARY 20TH, ORIGINALLY
TO MARCH 5TH, WHICH WAS A MISSTEP.
WE DIDN'T MEAN TO
DOUBLE-SET, SO IT WAS RESET TO FEBRUARY 20TH.
PREPARING --
BUT WE, BY
10
THE COURT:
HOW DID THAT HAPPEN?
11
MR. SCOTT:
HOW DID THAT HAPPEN?
12
THE COURT:
HOW DID THE RESETTING COME ABOUT?
13
MR. SCOTT:
WELL, ABOUT THE SAME TIME IN EARLY DECEMBER,
14
WE REALIZED NOT ONLY CAN WE NOT GET THE SPANIER, MCCLAIN CASE
15
PREPARED BY THAT TIME, BUT WE ALSO CAN'T GET THE NAVY CASE
16
PREPARED BY THAT TIME.
17
AND SO WE STARTED THE PROCESS OF TRYING TO GET ADEQUATE
18
TIME TO BE EFFECTIVE ON EACH CASE.
19
MR. ADAMS TOOK THE LEAD WITH THIS, HE HAD MADE CONTACT WITH
20
CHAMBERS HERE IN THIS CASE, IN THE FIRST WEEK OF DECEMBER, TO
21
TRY TO GET ON CALENDAR TO DISCUSS THE CONTINUANCE.
22
A SIMILAR THING IN FRONT OF JUDGE BURNS.
23
AS I UNDERSTAND IT, BECAUSE
AND WE DID
NOW ULTIMATELY, WE ENDED UP IN FRONT OF JUDGE BURNS FIRST
24
BECAUSE IN THAT CASE, WHEN THE COURT SET US IN JANUARY, WITH
25
WHAT WAS ABOUT A FOUR-MONTH WINDOW BETWEEN INDICTMENT AND
Case
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TRIAL, THE COURT SAID, I'M SHORT-SETTING YOU, BUT TO ALLEVIATE
THAT, OR TO MITIGATE AGAINST THAT TIME PRESSURE, I'M GOING TO
ORDER THE GOVERNMENT TO PRODUCE WHAT IT DESCRIBED AS A ROAD MAP
OR AN OUTLINE OF THE GOVERNMENT'S CASE, SO SORT OF ABOVE AND
BEYOND EXTRAORDINARY DISCOVERY OBLIGATIONS.
SO THE GOVERNMENT OWED US THIS DETAILED MEMORANDUM,
LISTING ALL OF THEIR EXHIBITS AND ALL OF THEIR WITNESSES BY
COUNT AND BY OVERT ACT IN THE NAVY CASE.
WANT TO BE ACCUSED, OR GIVE THE APPEARANCE, OF TAKING THAT
BECAUSE WE DIDN'T
10
EXTRAORDINARY DISCOVERY, THAT ROAD MAP, AND ONLY THEN ASKING
11
FOR A CONTINUANCE, WE ENDED UP IN FRONT JUDGE BURNS SHORTLY
12
BEFORE THE GOVERNMENT'S EXTRAORDINARY DISCOVERY WAS DUE IN THAT
13
NAVY CASE.
14
SO THAT WAS PART OF THE TIMING.
AND THEN WHEN JUDGE BURNS SAID, HOW MUCH TIME DO YOU NEED,
15
THE HONEST ANSWER TO THAT QUESTION WAS, WORKING NIGHTS AND
16
WEEKENDS, AS WE HAVE BEEN, WORKING THROUGH THE HOLIDAYS,
17
WORKING AROUND THE CLOCK, WE THINK THAT WE COULD GET THIS, THE
18
NAVY CASE, PREPARED IN 60 DAYS.
19
MARCH 15TH DATE, OR MARCH 12TH DATE.
20
BE THE FIRST TO SAY, I SHOULD HAVE SAID, NOW, BEAR IN MIND,
21
YOUR HONOR, THAT MR. ADAMS AND I ARE ALSO SET IN FRONT OF JUDGE
22
BENITEZ, WE DESPERATELY NEED MORE TIME IN THAT CASE, AND WE'RE
23
IN THE PROCESS OF TRYING TO CONTINUE THAT.
24
HAVE HAPPENED, AND IT DIDN'T HAPPEN, AND THAT'S MY FAULT.
25
AND SO HE GAVE US THE

AND AT THAT POINT, I'LL
THAT IS WHAT SHOULD
BUT I WANT TO TELL THE COURT AND THE GOVERNMENT THAT THERE
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ARE NO ATTEMPTS TO MANEUVER OR BE DUPLICITOUS OR TO DO ANYTHING
BEHIND ANYONE'S BACK.
TELLING JUDGE BURNS WHAT I SHOULD HAVE.
OVERSIGHT, NOTHING THAT WAS INTENTIONAL.
SO I ACCEPT RESPONSIBILITY FOR NOT

BUT IT WAS AN
THE FACT REMAINS, YOUR HONOR, THERE ARE LITERALLY TENS OF
THOUSANDS OF SEC DOCUMENTS THAT HAVE BEEN DISCLOSED.
THERE ARE
TENS OF THOUSANDS OF DOCUMENTS PRODUCED BY THE SO-CALLED -- OR
THE ALLEGED VICTIMS AND THEIR ATTORNEYS.
OF THOUSANDS OF DOCUMENTS SEIZED FROM THE VARIOUS COMPANIES AND
THERE HAVE BEEN TENS
10
SEARCH WARRANTS IN THIS CASE, THE EQUIVALENT OF HUNDREDS, UPON
11
HUNDREDS, UPON HUNDREDS OF BANKER'S BOXES OF DISCOVERY.
12
ARE HARD DRIVES, AFTER HARD DRIVES THAT HAVE BEEN ANALYZED BY
13
THE RCFL THAT WE NEED TO ALSO TRY TO ADDRESS.
14
THERE
MY OWN CLIENT HAS HIS OWN FILES, HIS OWN DOCUMENTS THAT
15
NEED REVIEW TO SEE IF THAT IS OF ANY ASSISTANCE.
AT THE END OF
16
THE DAY, YOUR HONOR, I'M A SOLO PRACTITIONER.
17
GIVEN ME SOME LAW CLERK HELP IN THIS CASE.
18
BURNS CASE AS WELL, THERE ARE ALSO HUNDREDS AND HUNDREDS OF
19
BANKER'S BOXES OF DISCOVERY.
20
LITANY, HARD DRIVES AND RECORDINGS AND SO ON.
THE COURT HAS
BUT IN THE JUDGE
AND THE SAME THING, THE SAME
21
I CAN TELL THE COURT THAT LAST SATURDAY, MR. ADAMS AND I
22
HAD A 6:00 A.M. TRIAL PREP SESSION IN MY OFFICE FOR THE WHOLE
23
MORNING.
24
6:00 A.M. TRIAL PREP MEETING IN MY OFFICE.
25
ARE WORKING AS HARD AS WE CAN ON BOTH CASES.
THE SATURDAY BEFORE THAT, MR. ADAMS AND I HAD A

SO WE REALLY, TRULY
I'VE HEARD IT --
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YOU KNOW, I HEAR IT SAID, AND THERE IS OFTEN DISCUSSION ABOUT
THE FEDERAL COMMUNITY AND THE SOUTHERN DISTRICT COMMUNITY.
THE REALITY IS, WE HAVE A JUDGE BURNS CASE AND JUDGE BENITEZ
CASE.
MR. WARREN AS WELL -- I DON'T WANT TO SPEAK FOR THESE
GENTLEMEN, BUT I'M SPEAKING FOR MYSELF ONLY.
THIS COMMUNITY, WE'RE TRYING TO DO BOTH, AND WE'RE TRYING IN
GOOD FAITH TO DO BOTH.
CONSTITUTIONALLY EFFECTIVE FOR EACH CLIENT.
AND
AND AS MEMBERS OF THIS COMMUNITY, MR. ADAMS AND I, AND
AS MEMBERS OF
AND WE SIMPLY WANT TO BE

THE CLIENTS IN OUR
10
CASE ARE OUT ON BOND.
11
GOVERNMENT TO ACCOMMODATE ANY SCHEDULING ISSUES THAT THEY HAVE.
12
WE'RE WILLING TO WORK WITH THE
BUT I LITERALLY AND FIRMLY CANNOT BE PREPARED BY
13
MARCH 5TH.
14
DON'T HAVE -- THERE ARE NOT ENOUGH HOURS IN THE DAY; THERE IS
15
NOT ENOUGH MINUTES IN THE DAY.
16
I WANT TO BE, BUT I WILL NOT BE ABLE TO.
I SIMPLY
I'M TREADING A LITTLE BIT LIGHTLY HERE, BUT IF EVEN ONE OF
17
THE JUDGES IN THESE TWO CASES WERE A DIFFERENT JUDGE, WE WOULD
18
HAVE SAID, WE'D LIKE A MOTION HEARING, TRIAL SETTING, I THINK
19
IF PAST IS PROLOGUE, ONE OF THE JUDGES WOULD HAVE GIVEN US A
20
MOTION HEARING, TRIAL SETTING, AND THEN WE WOULD HAVE BEEN ABLE
21
TO NEGOTIATE OUR DATES A LITTLE BIT BETTER.
22
AND JUDGE BURNS --
BOTH YOUR HONOR
23
THE COURT:
WHAT EXACTLY ARE YOU SAYING?
24
MR. SCOTT:
WHAT EXACTLY I'M SAYING IS THAT BOTH YOU, YOUR
25
HONOR, AND JUDGE BURNS ARE KNOWN FOR HAVING AN EXPEDITED AND AN
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AGGRESSIVE TRIAL CALENDAR.
IT'S ADMIRABLE TO WANT TO MOVE THE CASES ALONG AS WELL AS
POSSIBLE.
AND THAT'S AN ADMIRABLE THING.
AND WHAT SPECIFICALLY I'M SAYING IS, THAT WE ASKED FOR A
STATUS TO BE ABLE TO PICK AND MANEUVER A DATE, AND THE COURT
SAID NO, I PREFER TO SET A MARCH TRIAL DATE IN THIS CASE.
WHICH CERTAINLY, THE COURT IS THE COURT, SO MARCH IT IS.
8
9
AND SIMILARLY, WHEN WE WERE IN FRONT OF JUDGE BURNS, WE

SAID, JUDGE BURNS, CAN WE PLEASE HAVE A MOTION HEARING, TRIAL
10
SETTING SO WE CAN PICK A REALISTIC DATE, AND JUDGE BURNS SAID,
11
NO, IT WILL BE JANUARY.
12
DECISIONS.
13
AND, OF COURSE, THESE ARE THE COURT'S
AND WE DO OUR BEST TO LIVE WITH THEM.
AND FOR THE PAST 60 DAYS, SINCE JUDGE BURNS SHORT SET US,
14
WE'VE BEEN TRYING TO FIGHT THE TWO-FRONT WAR.
15
IS, AND I NEED TO BE CANDID ABOUT THIS, I HAVEN'T BEEN ABLE TO
16
DEVOTE MUCH OF ANY TIME AT ALL TO THIS CASE DESPITE MY BEST
17
EFFORTS, ONLY BECAUSE JANUARY COMES BEFORE MARCH ON THE
18
CALENDAR.
19
TRUE FRONT WAR, YOU SORT OF HAVE TO LOOK FIRST AT THE FIRST
20
FRONT THAT IS GOING TO BE SHOOTING AT YOU.
21
22
BUT THE REALITY
AND I'VE BEEN TRYING TO -- WHEN YOU'RE FIGHTING A
THE COURT:
AND SO --
SO LET ME MAKE SURE I UNDERSTAND THIS.
JUDGE BURNS CASE WAS SET FOR TRIAL JANUARY 28TH, RIGHT?
23
MR. SCOTT:
JANUARY 15TH, I BELIEVE IT WAS.
24
THE COURT:
ALL RIGHT.
25
MR. SCOTT:
YES.
ANYTHING ELSE?
I WAS JUST ASKED WHEN THE CASE IS
THE
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CURRENTLY SET NOW.
AND NOW IT'S SET FOR FEBRUARY 20TH.
THE COURT:
RIGHT.
MR. SCOTT:
BECAUSE WE WENT BACK INTO JUDGE BURNS.
BURNS DIDN'T WANT TO SET HIS CASE ON TOP OF YOURS.
FEBRUARY 20TH.
6
7
THE COURT:
JUDGE
SO WE'RE AT
SO YOU HAD A TRIAL DATE IN THE OTHER CASE, AND
IT WAS SET IN JANUARY?
MR. SCOTT:
YES.
THE COURT:
AND WE SET THIS TRIAL IN MARCH?
10
MR. SCOTT:
CORRECT.
11
THE COURT:
BUT NOW YOU'VE ASKED TO MOVE A TRIAL THAT WAS
12
SET IN JANUARY, JANUARY 15TH, AND NOW IT IS SET IN FEBRUARY?
13
MR. SCOTT:
CORRECT.
14
THE COURT:
AND SO NOW, BASICALLY WHAT YOU'VE DONE IS
15
YOU'VE CREATED THIS VERY SHORT WINDOW BETWEEN THAT TRIAL AND
16
THIS TRIAL.
17
MR. SCOTT:
THAT WINDOW HAS BEEN CREATED.
I DIDN'T WANT
18
TO CREATE THAT WINDOW.
I WOULD LIKE TO CREATE A MUCH BIGGER
19
WINDOW.
20
I WOULD HAVE MOVED BOTH CASES LIKE THIS MUCH FURTHER APART.
IF I HAD MY DRUTHERS, TO USE THE COURT'S HAND MOTIONS,
21
THE COURT:
I KNOW.
22
ANYWAY, MS. DEVINE?
23
MS. DEVINE:
LOOK, OKAY --
YOUR HONOR, THE GOVERNMENT IS READY TO GO ON
24
MARCH 5TH.
AND I JUST WANT TO AT LEAST CREATE A RECORD HERE.
25
THIS CASE WAS INDICTED IN MARCH OF 2012.
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MR. SCOTT WAS REPRESENTING MR. SPANIER PRIOR TO THAT,
SIMILAR TO THIS OTHER CLIENT HE HAS IN FRONT OF JUDGE BURNS.
WE HAD A MOTION HEARING ON APRIL 23RD, 2012.
THE TRANSCRIPT.
TOLD EVERYBODY, IF YOU CAN'T DEVOTE THE TIME TO THIS CASE,
PLEASE LET ME KNOW NOW.
BEEN ONE OF THE ATTORNEYS, AND HE TOOK YOUR ADVICE AND ADVISED
THE COURT THAT HE DIDN'T THINK HE COULD DEVOTE THE TIME.
THEN MR. ADAMS WAS APPOINTED IN MR. BHANDARI'S PLACE.
10
11
AND I WISH I HAD
BECAUSE I SPECIFICALLY REMEMBER YOUR HONOR
AND I KNOW THAT SANJAY BHANDARI HAD
AND
WE THEN HAD ANOTHER TWO MONTHS, AND THEN WE CAME BACK AT

THE END OF JUNE, AND THE THREE COUNSEL HERE ASKED --
12
THE COURT:
13
MS. DEVINE:
JUNE 18TH.
JUNE 18TH, CORRECT.
AND THEY ASKED FOR THE
14
ENTIRE SUMMER BECAUSE THEY WANTED TO REVIEW THE DISCOVERY.
15
OKAY.
16
AND WE SET A TRIAL DATE.
17
THEY HAD THIS OTHER CASE THAT WAS INDICTED IN AUGUST AT THE
18
SEPTEMBER HEARING, WHEN WE SET THE TRIAL DATE.
19
SO WE AGREED TO THAT.
AND WE CAME BACK IN SEPTEMBER,
WELL, NO MENTION WAS EVER MADE THAT
THE OTHER THING IS, IS THAT THE DEFENSE ATTORNEYS WERE
20
VERY, VERY ADAMANT THAT THEY WANTED US TO PRODUCE ALL OF OUR
21
WITNESS STATEMENTS, ALL OF OUR JENCKS STATEMENTS, WHICH WE'RE
22
NOT REQUIRED TO PRODUCE UNTIL TRIAL, AND WE AGREED.
23
AND YOUR HONOR ASKED US IF WE WOULD PROVIDE THAT EARLY,
24
AND WE DID.
WE ASSEMBLED IT ALL TOGETHER, AND WE PRODUCED ALL
25
OF OUR WITNESS STATEMENTS.
SO THEY HAVE A ROAD MAP FOR THIS
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CASE.
NOVEMBER.
WAITING FOR THE COURT TO SIGN OFF ON A PROTECTIVE ORDER.
THEY HAVE ALL THE WITNESS STATEMENTS.
THEY HAD THEM IN
WE HAD THEM READY TO PRODUCE IN OCTOBER, BUT WE WERE
WE'VE COMPLIED WITH OUR DISCOVERY; WE'VE PRODUCED OUR
DISCOVERY.
SUPPORT OF OUR SEIZURES OF ASSETS IN THIS CASE, WHICH REALLY
PROVIDES A REAL ROAD MAP TO THIS CASE AND EXACTLY WHAT THE CASE
IS AND WHAT THE EVIDENCE IS.
9
10
11
WE'VE GIVEN THEM AN AFFIDAVIT THAT WAS DONE IN
THE COURT:
DO ME A FAVOR, FOR PURPOSES OF THE RECORD,
SUMMARIZE THIS CASE FOR ME, WOULD YOU.

MS. DEVINE:
THIS CASE IS NOT AS COMPLEX AS THE DEFENSE
12
WOULD LEAD YOU TO BELIEVE.
13
MAKE IS THAT IT IS SIMILAR TO A PAWN SHOP.
14
IS, THE DEFENDANTS, WHAT THEY DID IS, THEY -- THEY WERE IN THE
15
BUSINESS OF PROVIDING LOANS THAT WERE SECURED BY STOCK.
16
WHAT THEY WOULD DO IS, THEY WOULD PROMISE TO LOAN INDIVIDUALS
17
MONEY IN RETURN FOR THEM PLEDGING THEIR STOCK.
18
AND THE BEST ANALOGY THAT I CAN

AND WHAT HAPPENED
AND SO
AND SO WHAT THEY WOULD DO IS, THEY WOULD TAKE THE STOCK,
19
HAVE ALL THE STOCK PLEDGED TO THEM, AND THEN, UNBEKNOWNST TO
20
THE PEOPLE WHO WERE BORROWING THE MONEY AND PLEDGING THEIR
21
COLLATERAL, THEY WOULD SELL THE STOCK.
22
TAKE THAT MONEY AND USE THAT MONEY TO ACTUALLY FUND THE LOAN.
23
AND THEN THEY WOULD
AND THE ANALOGY I HAVE IS TO A PAWN SHOP.
IF YOU WANT TO
24
SELL A PIECE OF JEWELRY, OR YOU NEED MONEY, YOU TAKE IT TO THE
25
PAWN SHOP.
AND THEY HOLD YOUR JEWELRY, AND THEN YOU COME BACK
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WHEN YOU'RE READY TO REPAY, AND GET YOUR JEWELRY BACK.
WELL, WHAT THEY DID IN THIS CASE IS, THEY TOOK THE
JEWELRY.
THEY SAID, COME BACK IN THREE DAYS, WE'LL GIVE YOU A
LOAN.
THESE PEOPLE, AND THEN GAVE THEM THAT MONEY, HOPING THAT THEY
WOULD NEVER COME BACK TO THE PAWN SHOP.
THEY SOLD THE JEWELRY TO SOMEBODY ELSE, DIDN'T TELL
AND THAT IS REALLY, I MEAN, WHAT THIS CASE IS ABOUT.
DON'T BELIEVE THAT IT'S AS COMPLEX, WITH ALL THE SECURITIES AND
SECURITIES LAWS AND ALL THAT.
10
11
12
13
THE COURT:
I JUST THINK IT'S A SIMPLE --
LET ME ASK YOU A SIMPLE QUESTION.
HOW MANY
WITNESSES DOES THE GOVERNMENT INTEND TO CALL IN THIS CASE?

MS. DEVINE:
WE PROBABLY -- I DON'T HAVE IT IN FRONT OF
ME, BUT IT'S ANYWHERE BETWEEN 30 TO 40 WITNESSES.
14
THE COURT:
THAT IS A LOT OF WITNESSES.
15
MS. DEVINE:
I DON'T BELIEVE THAT THEY'RE GOING TO BE
16
QUICK.
I MEAN, I DON'T BELIEVE THEY'RE GOING TO BE LENGTHY
17
WITNESSES.
18
BECAUSE ONCE WE'RE ABLE TO PUT ON ONE OF THE WITNESSES TO
19
DESCRIBE THE SCHEME, I THINK EVERY OTHER WITNESS -- IT'S GOING
20
TO BECOME APPARENT THAT THE SCHEME IS SIMILAR WITH RESPECT TO
21
EVERY WITNESS.
22
WE'RE ANTICIPATING TWO WEEKS.
I THINK IT'S SOMETHING THAT IS GOING TO GO QUICK.
AND SO I THINK IT WILL GO FAIRLY QUICKLY.
23
THE COURT:
24
MS. DEVINE:
25
MR. SCOTT:
FOR THE GOVERNMENT'S CASE?

CORRECT.
YOUR HONOR, VERY BRIEFLY BY WAY OF RESPONSE,
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MS. DEVINE IS CORRECT, THAT THE COURT SAID, IF YOU DON'T HAVE
TIME, LET ME KNOW NOW.
TAKING NEW CASES.
HAD I KNOWN IN SEPTEMBER THAT TWO WEEKS DOWN THE ROAD JUDGE
BURNS WAS GOING TO SET ME IN JANUARY, I WOULD HAVE SAID
SOMETHING ABOUT THAT.
BURNS WAS GOING TO SHORT SET THAT CASE.
HAVE BEEN THAT IT WOULD HAVE BEEN SET OUT BEHIND THE CASE THAT
WE HAVE HERE.
10
AND WE TRIED TO ABIDE BY THAT, BY NOT
AS I SAID, THIS WAS A PREEXISTING CASE.
AND
BUT THERE IS NO WAY TO KNOW THAT JUDGE

MY ASSUMPTION WOULD
SO THAT IS NOT SOMETHING THAT, I THINK, COULD HAVE BEEN
11
PLANNED FOR OR COULD HAVE BEEN PREVENTED.
12
THINK IT'S A LIT BIT -- THE RECORD BELIES, AND THE FACTS BELIE,
13
MS. DEVINE'S STATEMENT THAT THIS IS NOT A COMPLEX CASE.
14
BEEN DEEMED COMPLEX AS A MATTER OF LAW FOR STARTERS.
15
THAT MOTION WAS GRANTED WITH NO OPPOSITION FROM THE GOVERNMENT.
16
THE GOVERNMENT DIDN'T HAVE A PROBLEM CALLING IT COMPLEX WHEN WE
17
MADE THAT MOTION NEAR THE BEGINNING OF THIS CASE.
18
FRANKLY, I'M NOT FAMILIAR WITH NOT COMPLEX CASES THAT HAVE 40
19
WITNESSES.
20
TENSION THERE IN THE GOVERNMENT'S INDICTMENT, IN THEIR PLAN FOR
21
TRIAL, AND IN THE REPRESENTATION THAT THIS IS NOT COMPLEX.
22
AND RESPECTFULLY, I
IT'S
I MEAN,
AND,
I MEAN, THAT JUST SEEMS -- THERE SEEMS TO BE SOME
THIS IS COMPLEX.
THE DISCOVERY IS VOLUMINOUS.
23
35 COUNTS IN THE INDICTMENT.
24
LITERALLY ALL OVER THE GLOBE THAT ARE ALLEGED IN THE
25
INDICTMENT.
THERE ARE
THERE ARE DIFFERENT TRANSACTIONS
AND IT NEEDS ADEQUATE INVESTIGATION.
IT NEEDS
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ADEQUATE PREPARATION, AND WE NEED TIME TO PREPARE FOR THE 40
WITNESSES.
AGAIN, THIS IS -- AS I WAS STARTING TO SAY, THIS IS
SOMETHING THAT WE'RE TRYING TO DO BOTH, BUT EACH OF US ARE SOLO
PRACTITIONERS, AND EACH OF US ARE WORKING AS HARD AS WE CAN,
BUT WE SIMPLY CANNOT BE EFFECTIVE FOR BOTH.
THE COURT:
LET ME ASK YOU A QUESTION.
GIVEN THAT THIS
CASE WAS INDICTED FIRST, AND HAS BEEN SET FOR TRIAL FIRST, WHY
IS IT THAT JUDGE BURNS SET HIS TRIAL IN FEBRUARY?
10
11
HIM FOR MORE TIME PAST MARCH?

MR. SCOTT:
I THINK WE'VE BEEN PRETTY CLEAR THAT WE NEED
12
MORE TIME THAN WHAT WE'VE BEEN GIVEN.
13
ASKED FOR A CONTINUANCE, AND THAT'S WHY --
14
DID YOU ASK
THE COURT:
I MEAN, THAT'S WHY WE
BUT WHEN YOU WEREN'T IN THE CONFLICT, THE
15
APPARENT OVERSIGHT, WHERE YOU HAD APPARENTLY SET TWO CASES ON
16
THE SAME DAY, DID YOU ASK JUDGE BURNS IF HE WOULD SET HIS CASE,
17
LIKE, IN APRIL OR IN MAY OR JUNE, RATHER THAN FEBRUARY?
18
MR. SCOTT:
19
WHAT I'M GOING TO DO:
20
AND SO THAT'S WHAT WE HAVE.
21
IS TO DO, AND I DON'T THINK HE'S COMING OFF OF THAT, EITHER.
22
THE COURT:
WHEN WE STARTED, JUDGE BURNS SAID, HERE IS

I'M GOING TO BACK IT UP TO FEBRUARY.
THAT'S WHAT JUDGE BURNS' INTENTION
DID YOU DECLARE THAT YOU WOULD BE UNABLE TO
23
ADEQUATELY REPRESENT YOUR CLIENT IN THAT CASE IF THE CASE WERE
24
TO GO TO TRIAL IN FEBRUARY, AS SET BY JUDGE BURNS?
25
MR. SCOTT:
WE REPRESENTED THAT WE COULD NOT BE
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CONSTITUTIONALLY EFFECTIVE IN JANUARY, AND WE ASKED FOR THE 60
DAYS.
CONSTITUTIONALLY COMPETENT IN THAT CASE BECAUSE, AS I SAID,
THAT IS THE ONE THAT, CANDIDLY, I'VE BEEN DEVOTING MORE TIME TO
ONLY -- AGAIN, BECAUSE JANUARY COMES BEFORE MARCH.
6
7
8
9
10
11
BECAUSE WE THINK THAT WE COULD BARELY BE
THE COURT:
I'M GOING TO TAKE A WILD GUESS HERE, LET ME
GUESS, I BET THAT CASE IS A RETAINED CASE.

MR. SCOTT:
THAT CASE IS A RETAINED CASE.
BUT LET ME BE
EQUALLY CLEAR, WHETHER THAT IS RETAINED, AND WHETHER THIS IS A

CJA CASE, DOES NOT MAKE JANUARY COME AFTER MARCH.
THE COURT:
LOOK, I WAS A LAWYER FOR A LONG TIME.
12
UNDERSTAND ECONOMICS; I KNOW HOW THEY WORK.
13
MATTER SUBMITTED?
OKAY, IS THE
14
MR. SCOTT:
ABSENT ANY OTHER QUESTIONS, YES, YOUR HONOR.
15
THE COURT:
ALL RIGHT.
WELL, LOOK, HERE IS THE PROBLEM:
16
THIS CASE HAS NOW BEEN PENDING, AND WILL BE PENDING, FOR
17
ALMOST, WELL, FOUR DAYS SHY OF A YEAR SINCE THE DATE THAT THE
18
CASE WAS INDICTED.
19
THIS ROAD, THAT I EXPECTED THIS CASE TO START AND TO GO TO
20
TRIAL EARLY, EVEN THOUGH IT WAS COMPLEX.
21
I MADE IT PRETTY CLEAR WHEN WE STARTED DOWN
SEE, THERE IS A HUGE -- THERE IS A HUGE PROBLEM THAT
22
ARISES WITH THESE CASES THAT I FIND.
AND THAT IS, SOMETIMES IT
23
SEEMS LIKE THE MORE TIME THAT WE GIVE, THE WORSE THE CASE GETS.
24
AND, I MIGHT ADD, NOT THAT IT'S A DETERMINATIVE CONSIDERATION,
25
BUT IT CERTAINLY IS A CONSIDERATION THAT, I THINK, THE COURTS
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HAVE TO TAKE INTO ACCOUNT, AND THAT IS THAT THE CASES GET MORE
EXPENSIVE.
GET.
TRILLION DEBT OR SOMETHING, RIGHT.
OF ECONOMICS IN THAT REGARD AS WELL.
THE MORE YOU CONTINUE THEM, THE MORE EXPENSIVE THEY
AND YOU KNOW, AS WE KNOW, WE HAVE A, WHAT IS IT, $16

SO WE HAVE TO BE COGNIZANT
SO AS TIME GOES BY, THESE CASES DRAG ON, THEY DRAG ON.
THE EXPENSE GOES UP.
AND SOMEHOW, SOMETIME, SOMEONE HAS TO
SAY, OKAY, ENOUGH.
MEAN, I GAVE YOU A MARCH 5TH TRIAL DATE, WHICH WAS QUITE AWAYS
NOW, IN THIS CASE, I HAD ORIGINALLY -- I
10
AWAY, AS I RECALL.
11
MUCH AGREE TO A GREAT CONSENT.
12
THESE CASES, WE ASK THE GOVERNMENT TO GIVE YOU, ESSENTIALLY, A
13
ROAD MAP, AND WE TRY TO SIMPLIFY YOUR LIFE, TRY TO MAKE DEFENSE
14
COUNSEL'S LIFE EASIER AND MINIMIZE THE COST IF WE CAN.
15
LIKE JUDGE BURNS -- JUDGE BURNS AND I VERY

FOR EXAMPLE, WHEN WE GET TO
AND THE PROBLEM, OF COURSE, MR. SCOTT, AS I'M SURE BOTH
16
YOU AND MR. ADAMS AND MR. WARREN KNOW IS, LOOK, ANY TIME WE
17
CONTINUE A TRIAL, IF WE'RE TALKING ABOUT A TWO- OR THREE-DAY
18
TRIAL, IT'S USUALLY NO BIG DEAL BECAUSE WE CAN GENERALLY
19
SQUEEZE THAT IN SOMEWHERE.
20
LIKE THIS, ANY TIME WE CONTINUE THAT, THAT JUST HAS AN
21
EXPONENTIALLY ADVERSE EFFECT ON THE REST OF OUR CALENDARS.
22
BUT WHEN WE'RE TALKING ABOUT A CASE
AND AS YOU KNOW, WE HAVE -- I THINK WE'RE THE FOURTH
23
BUSIEST COURT IN THE NATION.
AND SO, YOU KNOW, IT'S HARD FOR
24
ME TO SAY, OKAY, LET'S CONTINUE THIS TRIAL DATE, AND WE'LL SET
25
IT SOMEWHERE ELSE.
AND ALL THAT DOES IS, IT JUST CREATES A
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TIDAL WAVE THAT JUST SORT OF MOVES DOWN THE ROAD.
I THINK I'VE SAID A LOT MORE THAN I NEED TO SAY, TO BE
HONEST WITH YOU.
BECAUSE I ALSO DON'T WANT TO BE DIFFICULT.
BEING REASONABLE WHEN I SAID TO YOU FOLKS, LOOK, DON'T TAKE
THIS CASE IF YOU CAN'T BE PREPARED, IF YOU CAN'T BE READY,
DON'T TAKE IT.
ENOUGH AWAY TO GIVE YOU AN OPPORTUNITY TO DO THAT.
FACT THAT YOU HAVE THIS OTHER CONFLICT, WELL, I CAN'T HELP
10
11
THAT.
BUT I WANT YOU TO KNOW WHERE I'M COMING FROM.

I THOUGHT I WAS
AND I MEANT IT, AND I SET THE TRIAL DATE FAR

NOW THE
I DON'T KNOW HOW THAT WORKS.

I'M NOT GOING TO CONTINUE THE TRIAL DATE.
I'M SORRY YOU
12
GUYS ARE GOING TO HAVE TO WORK -- I THINK YOU HAVE A PARALEGAL.
13
IF I'M NOT MISTAKEN, MR. ADAMS HAS A PARALEGAL?
NO?
14
MR. ADAMS:
NO, YOUR HONOR, NOT IN THIS CASE.
15
MR. SCOTT:
FOR THE RECORD, I DON'T HAVE A PARALEGAL.
16
COURT GAVE ME SOME LAW CLERK HOURS ON THIS CASE.
17
THE COURT:
18
ON THESE CASES.
19
RIGHT?
20
21
22
23
24
25
THE
MR. SCOTT:
THAT'S RIGHT.
I GAVE YOU A LAW CLERK TO WORK
AND I KNOW YOU HAVE -- YOU HAVE AN ASSOCIATE,
I HAVEN'T HAD AN ASSOCIATE SINCE JULY OF 2012.
I'M A SOLO PRACTITIONER.

THE COURT:
WELL, THERE ARE A WHOLE BUNCH OF PEOPLE OUT
THERE LOOKING FOR WORK.

MR. SCOTT:
WILL THE COURT PAY FOR THEM?
ON THE OFFER IF YOU WANT --
I'LL TAKE YOU UP
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THE COURT:
YOU KNOW WHAT, I THINK WE HAVE RULES -- THERE
IS A GENERAL ORDER ON WHAT WE CAN APPROVE AND WHAT WE CANNOT
APPROVE.
I DO WANT THIS CASE TO GET TO TRIAL, AND I DON'T WANT TO
CONTINUE IT FOR THE REASONS I'VE ALREADY STATED.
I'M CERTAINLY WILLING TO WORK WITH YOU ON THAT.
SO, HERE IS WHAT WE'RE GOING TO DO:
BUT
WE HAVE A MOTION IN
LIMINE DATE FOR -- THE MOTION IN LIMINE -- MOTION IN LIMINE DUE
DATE IS JANUARY 7TH.
OR THE RESPONSES WILL BE JANUARY 18TH.
THE GOVERNMENT'S RESPONSES WILL BE DUE -THE MOTION IN LIMINE
10
HEARING WILL NOW BE SET ON JANUARY 28TH, WHICH, I BELIEVE, WAS
11
THE PREVIOUS DATE THAT YOU WERE GOING TO TRY THE JUDGE BURNS
12
CASE.
13
MR. ADAMS:
ACTUALLY, YOUR HONOR, I THINK WE HAD
14
PREVIOUSLY SET THE 23RD OF JANUARY FOR MOTIONS HEARING HERE.
15
THE 28TH WILL CONFLICT WITH THE JUDGE BURNS CASE, AND WE HAVE
16
ALL MOTIONS BEING HEARD THAT AFTERNOON.
17
MORNING.
18
THE COURT:
THAT'S ALL RIGHT.
I CAN DO IT IN THE
WE'LL DO IT ON THE 23RD IF
19
THAT WILL WORK FOR YOU.
AND THE JURY TRIAL WILL REMAIN AS SET.
20
NOW, I WOULD ASK THAT YOU PLEASE HAVE ANY PROPOSED JURY
21
INSTRUCTIONS, TRIAL BRIEFS, VOIR DIRE THAT YOU WANT ME TO USE
22
AT THE TRIAL, IF YOU COULD PLEASE HAVE IT FOR ME AT THE MOTION
23
IN LIMINE DATE SO THAT WE CAN TRY TO GET AHEAD OF IT.
24
DON'T WAIT UNTIL THE TRIAL STARTS, WE BRING THE JURY IN, AND
25
NOW WE HAVE THIS ISSUE THAT WE HAVE TO DEAL WITH WITH JURY
SO WE
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INSTRUCTIONS, ETC.
I UNDERSTAND THAT AS THE EVIDENCE COMES IN, WE MIGHT HAVE
TO CHANGE OR MODIFY OR ADD TO THE JURY INSTRUCTIONS, BUT I
THINK WE CAN GET A JUMP ON IT AND GET STARTED.
SO, ANYTHING ELSE?
MR. ADAMS:
YOUR HONOR, I UNDERSTAND THAT THE COURT MAY BE
TIME SCREENING A POSSIBLE JURY PANEL?
8
9
MR. ADAMS?
THE COURT:
YEAH.
WE WILL DO THAT.
WE DON'T WANT JURORS
THAT AREN'T GOING TO BE ABLE TO SERVE ON THE PANEL SO --
10
MR. ADAMS:
I THINK WE WOULD LIKE TO HAVE ACCESS.
I KNOW
11
I WOULD LIKE TO HAVE ACCESS TO THOSE MATERIALS.
12
ARE ANY OBJECTIONS -- IN OTHER WORDS, SOME PEOPLE WILL WRITE
13
EXCUSES THAT MAY INVOLVE A JUDGMENT CALL, AND WE MAY WANT TO
14
WEIGH IN ON THAT JUDGMENT.
15
PROCESS?
16
THE COURT:
SO IF THERE
WOULD WE BE ABLE TO BE PART OF THAT
WELL, YOU KNOW, I'LL TELL YOU WHAT WE CAN DO,
17
I JUST WON'T SCREEN THEM.
I'LL BRING THEM IN HERE, AND THEN
18
I'LL ASK THEM IF THEY HAVE ANY PROBLEMS SERVING ON A TRIAL OF A
19
GIVEN DURATION.
20
ANY OBJECTION TO MY EXCUSING THEM, AND IF YOU DO, THEN WE'LL
21
KEEP THEM.
22
WORK?
23
ALL OF THAT TO YOU AHEAD OF TIME.
AND THEN I'LL TURN TO YOU AND ASK IF YOU HAVE
AND IF YOU DON'T, WE'LL EXCUSE THEM.
OKAY, GOOD ENOUGH?
HOW DOES THAT
THAT WAY WE DON'T HAVE TO PROVIDE
24
MR. ADAMS:
OKAY.
25
THE COURT:
ANYTHING ELSE?
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THE CLERK:
WHEN ARE THE MOTIONS IN LIMS DUE BY?
THE COURT:
MOTIONS IN LIM ARE DUE BY JANUARY 7TH, OKAY.
MR. SCOTT:
YOUR HONOR, I THINK I HAVE A REQUEST PENDING
EX PARTE FOR AN INVESTIGATOR.
FOR SOME TIME.
AND I THINK IT HAS BEEN PENDING
AND ONE HAS NOT BEEN HIRED YET ON THE CASE.
THE COURT:
YOU KNOW, THE PROBLEM I'M HAVING ON THIS, I
HAVE AN IN-BOX, AND MY -- IN MY CHAMBERS, WHERE THESE ARE
DELIVERED, THAT ARE PUT.
ONCE A WEEK.
AND I GO THROUGH THAT BOX AT LEAST
AND I DO NOT REMEMBER -- I KNOW MR. ADAMS SAID HE
10
HAD SOMETHING THAT HE SUBMITTED.
11
DON'T -- IN FACT, IF YOU'LL GIVE ME A MINUTE, I'M GOING TO TAKE
12
A MINUTE, I'M GOING TO GO BACK AND LOOK AT MY BOX AND SEE WHAT
13
IS BACK THERE.
14
MR. SCOTT:
COUNSEL, I JUST HONESTLY
SO SIT TIGHT FOR A MINUTE, OKAY.

YES, YOUR HONOR.
THE ONE I'M THINKING OF IS
15
FILE STAMPED RECEIVED, I THINK, APRIL 17TH OR SOMETHING, AND
16
IT'S A REQUEST FOR INVESTIGATOR HOURS FOR STEVEN BELIZZI,
17
B-E-L-I-Z-Z-I, FOR 100 INVESTIGATOR HOURS IS WHAT I'M ASKING
18
FOR.
19
20
21
THE COURT:
YOU KNOW WHAT, LET ME GO LOOK.
THE FILE STAMP
MEANS IT WAS RECEIVED BY MY CHAMBERS?

MR. SCOTT:
BY THE CLERK'S OFFICE.
IT WAS FILED EX PARTE
22
WITH THE CLERK, WHICH IS WHAT I UNDERSTAND TO BE THE PROCEDURE
23
TO FILE SOMETHING EX PARTE.
24
25
MR. ADAMS:
AND MINE, YOUR HONOR, IS NOVEMBER 13TH.
HONESTLY DON'T WANT TO SAY ON THE RECORD WHAT IT'S FOR.
AND I
BUT
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1
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IT'S FOR ANCILLARY SERVICES.

THE COURT:
LET ME -- I'M NOT GOING TO -- LET ME SAY THIS
ABOUT THAT, FOLKS, IF YOU FILE A MOTION, AND YOU DON'T GET A
RESPONSE, IF YOU FILED SOMETHING BY APRIL 13TH, AND YOU HAVEN'T
GOTTEN A RESPONSE, LET ME SUGGEST TO YOU THAT YOU SHOULDN'T BE
SHY ABOUT CALLING MY CHAMBERS AND ASKING OR INQUIRING ABOUT --
I KNOW OTHER LAWYERS DO THIS, SO IF YOU WOULD JUST SIMPLY CALL
AND SAY, YOU KNOW, WE FILED A MOTION, WE WONDER IF JUDGE
BENITEZ HAS HAD A CHANCE TO GET TO IT?
BECAUSE USUALLY, IF
10
THAT HAPPENS, ASSUMING THAT I HAVE, SAY, FOR EXAMPLE, BEEN AWAY
11
AT A CONFERENCE OR SOMEWHERE ELSE, IF I RETURN BACK, THEN I
12
MAKE SURE THAT I GET TO IT RIGHT AWAY.
13
MR. SCOTT:
I HAVE DONE THAT.
AND I KNOW -- IF MY MEMORY
14
SERVES ME, I THINK WE'VE DISCUSSED SOME OF THESE EX PARTE
15
ISSUES AT SOME OF THE EARLIER STATUS HEARINGS IN THIS CASE.
16
AND I THINK -- FRANKLY, WE'VE HAD SORT OF SIMILAR DISCUSSIONS,
17
WHERE I THINK THE COURT HAS SAID, I THINK IT'S BACK THERE, I
18
DON'T KNOW IF IT'S BACK THERE, BUT I'LL LOOK.
19
20
THE COURT:
TIGHT.
21
22
I'M GOING TO GO LOOK RIGHT NOW, SO JUST SIT
(RECESS TAKEN.)
THE COURT:
ALL RIGHT, LET'S GO ON THE RECORD.
FIRST OF
23
ALL, MR. ADAMS, I HAVE LOOKED BOTH IN THE FILE, AND I HAVE
24
LOOKED IN MY IN-BOX THAT I REFERRED TO EARLIER.
25
FROM YOU EITHER IN THE FILE OR IN THE IN-BOX.
I HAVE NOTHING
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NOW, WITH REGARDS TO MR. SCOTT, I DO HAVE SOMETHING IN THE
FILE.
YOU ALSO SUBMITTED A SECOND MOTION FOR INTERIM BILLING.
DON'T HAVE --
I THINK WHAT MAY POSSIBLY HAVE HAPPENED IS, I BELIEVE
MR. SCOTT:
I THINK THERE WERE THREE, YOUR HONOR.
THERE
WAS INTERIM BILLING FOR THE ATTORNEY, FOR MYSELF.
THERE WAS
THE REQUEST FOR THE PARALEGAL, SLASH, LAW CLERK, MR. BRADDICK.
THAT WAS THE SECOND ONE.
IS COMPLETELY INDEPENDENT, WHICH IS THE INVESTIGATOR HOURS.
BUT THEN THERE WAS A THIRD ONE, WHICH
10
AND THEN I REQUESTED THAT THE INVESTIGATOR BE ABLE TO SUBMIT
11
INTERIM BILLS AS WELL.
12
13
THE COURT:
WELL, I KNOW THAT I APPROVED AN ORDER FOR
JOSHUA BRADDICK.
14
MR. SCOTT:
YES.
15
THE COURT:
RIGHT.
THAT'S THE PARALEGAL, SLASH, LAW CLERK.

SO I KNOW I APPROVED THAT.
NOW I'M
16
NOT EXACTLY SURE WHAT MIGHT HAVE HAPPENED.
BUT NORMALLY WHEN
17
THESE ORDERS COME IN TO ME, THEY HAVE AN ORDER ATTACHED TO THEM
18
FOR MY SIGNATURE.
19
MR. SCOTT:
I DID THAT IN THIS CASE.
20
THE COURT:
OKAY, I DON'T SEE THE ORDER.
AND NORMALLY, IF
21
THE ORDER IS NOT IN MY FILE, THAT MEANS I SIGNED IT.
22
MOTIONS, BUT I DON'T SEE THE ORDERS, WITH THE EXCEPTION --
23
LET'S SEE --
24
25
MR. SCOTT:
I SEE THE
IF THE COURT HAD SIGNED IT, WOULD THAT
ORDINARILY BE DOCKETED, ALTHOUGH DOCKETED UNDER SEAL?
SO,
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PERHAPS, WE COULD CHECK THE SEALED PORTION OF THE DOCKET IF
THAT'S --
3
4
THE COURT:
I ALSO SEE I SIGNED AN
ORDER FOR INTERIM BILLING FOR APPOINTED COUNSEL.
5
6
THAT IS A POSSIBILITY.
MR. SCOTT:
YEAH, THAT ATTORNEY'S FEES, WHICH IS SEPARATE,
THE COURT:
RIGHT.
YES.
SO IT LOOKS LIKE I SIGNED AN ORDER FOR
MR. BRADDICK FOR PARALEGAL HOURS.
YOUR INTERIM ATTORNEYS' FEES.
AND I SIGNED AN ORDER FOR
I'M NOT EXACTLY SURE WHAT MIGHT
10
HAVE HAPPENED TO YOUR INVESTIGATOR MOTION.
11
FILED UNDER SEAL SOMEWHERE.
12
BUREAUCRACY.
13
14
IT MAY BE THAT IT'S
THAT'S ONE OF THE THINGS ABOUT
I'LL TELL YOU WHAT, IF YOU SUBMIT IT AGAIN, I'LL BE HAPPY

TO SIGN IT.
HOW IS THAT?
15
MR. SCOTT:
OKAY.
16
THE COURT:
GREAT.
17
MR. WARREN:
ANYTHING ELSE?
BRIEFLY, YOUR HONOR, I DIDN'T GET AN
18
OPPORTUNITY TO PIPE IN, BUT ALTHOUGH I WASN'T INVOLVED IN THE
19
JUDGE BURNS CASE IN ANY WAY, I JUST WANT TO ECHO -- AND I KNOW
20
THE COURT HAS RULED, BUT FOR THE RECORD, ON BEHALF OF
21
MR. MICELI, I ALSO FEEL IT'S GOING TO BE EXTRAORDINARILY
22
DIFFICULT TO BE READY WITHIN THE SIXTH AMENDMENT BY THE TRIAL
23
DATE FOR ALL THE REASONS THEY STATED.
24
STATED AND JUST WANTED THAT TO BE ON THE RECORD.
25
THE COURT:
THANK YOU.
I JUST ECHO WHAT THEY
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MR. ADAMS:
AND, YOUR HONOR, I'LL SUBMIT ANOTHER COPY OF
THAT ORDER.
THE COURT:
MS. DEVINE:
YEAH, PLEASE DO.

THANK YOU, YOUR HONOR.
(RECESS AT 9:53 A.M.)
---000---
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C-E-R-T-I-F-I-C-A-T-I-O-N
I HEREBY CERTIFY THAT I AM A DULY APPOINTED, QUALIFIED AND
ACTING OFFICIAL COURT REPORTER FOR THE UNITED STATES DISTRICT
COURT; THAT THE FOREGOING IS A TRUE AND CORRECT TRANSCRIPT OF
THE PROCEEDINGS HAD IN THE AFOREMENTIONED CAUSE; THAT SAID
TRANSCRIPT IS A TRUE AND CORRECT TRANSCRIPTION OF MY
STENOGRAPHIC NOTES; AND THAT THE FORMAT USED HEREIN COMPLIES
WITH THE RULES AND REQUIREMENTS OF THE UNITED STATES JUDICIAL
CONFERENCE.
10
DATED:
AUGUST 18, 2014, AT SAN DIEGO, CALIFORNIA
11
12
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18
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_________________________________
S/DEBORAH M. O'CONNELL, CSR#10563
REGISTERED PROFESSIONAL REPORTER
Exhibit 4
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1
3
4

5
PLAINTIFF,
6
V.
7
8
9
DOUGLAS MC CLAIN, JR., AND

JEFFREY SPANIER, JAMES MICELI,
DEFENDANTS.
. . . . . . . . . . . . . . . .
.
.
.
.
.
.
.
.
.
.
NO. 12-CR-0918
JANUARY 23, 2013
9:09 A.M.
10
11
TRANSCRIPT OF MOTION IN LIMINE HEARING

12
13
APPEARANCES:
FOR THE PLAINTIFF:
14
15
16
17
FOR THE DEFENDANT,

DOUGLAS MC CLAIN, JR.:
18
19
FOR THE DEFENDANT,

JAMES T. MICELI:
20
21
FOR THE DEFENDANT,

JEFFREY SPANIER:
22
23
24
25
COURT REPORTER:

BY: JOSEPH ORABONA, ESQ.
LAW OFFICES OF MARK F. ADAMS
BY: MARK F. ADAMS, ESQ.
LAW OFFICES OF JEREMY D. WARREN
BY: JEREMY D. WARREN, ESQ.
105 WEST F STREET, FOURTH FLOOR
LAW OFFICE OF TIMOTHY A. SCOTT
BY: TIMOTHY A. SCOTT, ESQ.
DEBORAH M. O'CONNELL, RPR, CSR
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2
SAN DIEGO, CALIFORNIA, JANUARY 23, 2013, 9:09 A.M.
1
2
* * * *
3
THE CLERK:
4
5
ONE ON CALENDAR, CASE NO. 12-CR-0918, USA
VS. JAMES MICELI, ET AL., MOTION IN LIMINE HEARING.
MS. DEVINE:
ON BEHALF OF THE UNITED STATES.
MR. SCOTT:
MR. JEFFREY SPANIER.
11
WARREN, FOR MR. MICELI.
12
WENT TO THE WRONG ENTRANCE.
13
WE CAN START WITHOUT HIM.

MR. SCOTT:
14
15
HE'S, APPARENTLY, IN THE BUILDING.
YOUR HONOR, MAY MR. SPANIER BE SEATED
THE COURT:
SURE.
HAVE HIM SIT IN THE BACK BEHIND
YOU.
MR. WARREN:
19
THE COURT:
AND, MR. ADAMS.
20
MR. ADAMS:
22
23
HE
AND WITH THE COURT'S PERMISSION,
18
21
JEREMY
DURING THE PROCEEDINGS?
16
17
TIM SCOTT, FOR
HE'S PRESENT BEFORE THE COURT.
MR. WARREN:
10
FAITH DEVINE,
THERE IS MR. MICELI.
BEHALF OF MR. MC CLAIN.

THE COURT:
MARK ADAMS, ON
HE'S PRESENT BEFORE THE COURT ON BOND.
ALL RIGHT.
MS. DEVINE, MR. ORABONA,
YOU'RE HERE ON BEHALF OF THE GOVERNMENT, RIGHT?
24
MS. DEVINE:
25
MR. ORABONA:
THAT'S CORRECT, YOUR HONOR.

THAT'S CORRECT, YOUR HONOR.
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THE COURT:
OKAY.
WELL, I HAVE A LOT OF MOTIONS THAT
HAVE BEEN FILED.
ASSIGN AN EXTERN TO LOOK AT THESE MOTIONS AND TO FIGURE OUT WHO
WAS JOINING IN WHAT MOTIONS FOR WHAT.
RESULT OF WHAT HAS BEEN FILED.
A MOTION, AND THEN SOMEBODY JOINS IN THIS MOTION, AND THEN
THERE IS ANOTHER MOTION, AND THEN SOMEBODY ELSE, BUT NOT
EVERYBODY, JOINS IN THAT MOTION.
HAVE TO TELL YOU, I'M A LITTLE -- I'M NOT SURE THAT I'M
10
11
I HAVE TO TELL YOU THAT I HAD TO ACTUALLY
AND THIS IS THE END
BECAUSE IT SEEMS LIKE THERE IS
AND THEN -- SO, FRANKLY, I
COMPLETELY WELL VERSED IN WHO IS ASKING FOR WHAT.

SO I'M GOING TO LET YOU TALK ABOUT THOSE THINGS IN A
12
MINUTE, ASSUMING THAT WE WANT TO GET THERE TODAY.
13
THERE, THOUGH, HOWEVER, I WANT TO ADDRESS A COUPLE THINGS THAT,
14
I THINK, ARE KIND OF IMPORTANT.
15
BEFORE WE GO
CORRECT ME IF I'M WRONG, BUT AS I RECALL, THE LAST HEARING
16
THAT WE HAD IN THIS MATTER, I HAD SET A STATUS HEARING, NOT
17
BECAUSE YOU FOLKS ASKED FOR IT, BUT BECAUSE I THOUGHT THAT,
18
PERHAPS, IT MIGHT BE APPROPRIATE AND NECESSARY GIVEN WHAT I HAD
19
HEARD WAS GOING ON IN CONNECTION WITH JUDGE BURNS.
20
THAN WAIT FOR SOMEWHERE DOWN THE ROAD SOMEBODY FILING A MOTION
21
TO CONTINUE THE TRIAL DATE, ETC., GIVEN THE FACT THAT I KNEW
22
THERE WAS A CONFLICT THAT HAD BEEN CREATED, NOT BY ANYTHING
23
THAT I DID, I THOUGHT IT WOULD BE WISE TO SET A STATUS
24
CONFERENCE TO SEE WHERE WE -- WHAT WAS GOING ON.
25
AND RATHER
NOW, I DON'T WANT TO REHASH WHAT WAS SAID TO ME, BUT, IN
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ESSENCE, TO SUMMARIZE, I WAS TOLD THAT -- LET'S SEE, MR. ADAMS
AND MR. SCOTT WERE CO-COUNSEL IN ANOTHER CASE.
RETAINED CASE.
THEIR TIME, IF NOT MOST OF THEIR TIME, PRESENTING FOR THAT CASE
TO GO TO TRIAL BEFORE JUDGE BURNS, I BELIEVE IT WAS SET, I
BELIEVE, JANUARY 18TH.
PREPARE FOR THIS CASE.
IT WAS A
THEY HAD, ESSENTIALLY, DEVOTED A MAJORITY OF
SO THEY REALLY HADN'T HAD TIME TO
AND SO WHEN THE CONFLICT CAME UP, AND I ASKED FOR AN
EXPLANATION, I WAS TOLD THAT -- I BELIEVE IT WAS MR. ADAMS WHO
10
SAID THAT HE DID NOT FEEL THAT HIS CLIENT COULD GET A FAIR
11
TRIAL, THAT IT WOULD BE A SHAM IF IT WENT TO TRIAL BY -- IF I
12
FORCED YOU TO GO TO TRIAL, ETC.
13
NOW I DO REMIND YOU THAT I SET THAT TRIAL BACK, I BELIEVE,
14
IN SEPTEMBER, IF I'M NOT MISTAKEN, AND I SET IT FOR AUGUST, AND
15
I SET IT FOR MARCH, WHICH WAS MANY, MANY, MANY MONTHS AWAY.
16
YOU HAD PLENTY OF -- PLENTY OF TIME.
17
TO YOU AND ASKING WHETHER, YOU KNOW, YOU WOULD BE ABLE TO GO TO
18
TRIAL, AND I HAD SET THAT DATE.
19
SO
AND I DO RECALL TALKING
NOW SINCE THAT TIME, I RECEIVED ANOTHER MOTION TO CONTINUE
20
FROM MR. ADAMS, AND I THINK MR. WARREN JOINED IN THAT, BUT I'M
21
NOT SURE.
22
BY THE WAY, MR. WARREN, I DON'T KNOW YOU TO BE SHY OR
23
BASHFUL, SO IF YOU HAVE SOMETHING YOU WANT TO SAY, PLEASE DON'T
24
FEEL BASHFUL ABOUT SAYING IT, OKAY.
25
UP, EVEN THOUGH I MIGHT NOT CALL YOU, PLEASE MAKE SURE YOU LET
SO IF YOU WANT TO SPEAK
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ME KNOW.
MR. WARREN:
THE COURT:
THANK YOU.
MR. ADAMS, YOU FILED A MOTION.
AND THERE
ARE A COUPLE OF THINGS IN THAT MOTION THAT KIND OF TROUBLED ME
A LITTLE BIT.
THE CLERK:
THIS WAS THIS MORNING.
THE COURT:
OH, THERE WAS SOMETHING THAT WAS FILED
THIS MORNING.
GOOD.
OKAY, MR. ADAMS, TODAY YOU FILED A MOTION
FOR JOINDER IN THE CO-DEFENDANT'S RESPONSES TO THE GOVERNMENT'S
10
RESPONSES TO MOTIONS IN LIMINE.
11
REVIEWED YOUR MOTION.
12
MR. ADAMS.
13
THINGS YOU SAID IN THERE.
14
NOW.
15
FILED A -- WHAT WAS IT, A REQUEST FOR PAYMENT, CJA VOUCHER ON
16
NOVEMBER 22ND.
17
NOT TAKEN ANY ACTION ON THAT.
18
IT?
I HAVEN'T
BUT HERE -- I RECEIVED A MOTION FROM
AND, FRANKLY, I WAS A LITTLE DISTRESSED BY A COUPLE

AND I WANT TO CLEAR THEM UP RIGHT
ONE OF THE THINGS YOU SAID, MR. ADAMS, WAS THAT YOU HAD
AND IN YOUR MOTION, YOU SAID THAT THE COURT HAD
MR. ADAMS:
19
20
WELL, GOOD.
NOW THAT'S NOT REALLY TRUE, IS
IT WAS TRUE AS OF THE DATE I FILED THAT
MOTION AS FAR AS I KNEW, YOUR HONOR.
21
THE COURT:
AS FAR AS YOU KNEW?
22
MR. ADAMS:
YES, SIR.
23
THE COURT:
BUT YOU UNDERSTAND YOU FILED A CJA
24
VOUCHER.
NOVEMBER 22ND, AT THE TIME YOU FILED YOUR MOTION
25
MAKING THAT STATEMENT, IT WAS APPROXIMATELY, I THINK IT WAS,
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LIKE, MAYBE 45 DAYS OUT.
FILED, IT GOES TO FINANCIAL.
THAT THEY HAVE TO LOOK AT WHEN THEY LOOK AT THESE CJA VOUCHERS.
SO THEY HAVE TO DO THEIR MAGIC ON A CJA VOUCHER.
IT, AND THEN IT COMES TO ME.
AND I'M SURE YOU KNOW, WE HAVE AN AWFUL LOT OF CASES IN THIS
DISTRICT.
IMPORTANT TO YOU, IT IS JUST ANOTHER ONE OF THE VOUCHERS THAT I
GET, OKAY.
10
YOU UNDERSTAND WHEN A CJA VOUCHER IS

AND FINANCIAL HAS LOTS OF CASES
THEY ANALYZE
AND THEN I HAVE TO REVIEW IT.
AND YOUR VOUCHER, ALTHOUGH I KNOW IT IS REALLY
NOW I HAVE TO DO WHAT I DO.
AND SO I DO WHAT I DO, AND I
11
APPROVE IT, AND THEN IT GOES BACK TO FINANCIAL.
12
FINANCIAL, BECAUSE OF THE FACT THAT YOUR VOUCHER EXCEEDED THE
13
MAXIMUM AMOUNT, THAT THEN GOES TO THE NINTH CIRCUIT.
14
HAVE A JUDGE UP IN THE NINTH CIRCUIT WHO IS IN CHARGE OF
15
REVIEWING THESE THINGS.
16
UNDERSTAND THAT YOUR VOUCHER IS NOT THE ONLY VOUCHER THAT THEY
17
HAVE TO REVIEW.
18
EITHER APPROVE IT OR DISAPPROVE IT.
19
THEN IT COMES BACK DOWN HERE TO THE COURT, AND OUR FINANCIAL
20
ARM WRITES A CHECK.
21
AND THEY
AND, OF COURSE, I'M SURE THAT YOU
AND SO ONCE THEY'VE REVIEWED THE VOUCHER, THEY

AND IF THEY APPROVE IT,
AND I SUSPECT YOU'VE PROBABLY GOTTEN A CHECK BY NOW ON
22
THAT VOUCHER, RIGHT?
23
MR. ADAMS:
YES, SIR.
24
THE COURT:
OKAY.
25
AND THEN
SO WHEN YOU SAID THAT NO ACTION
HAD BEEN TAKEN BY THE COURT, THAT WASN'T CORRECT.
BUT THE
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IMPLICATION OF THAT WAS THAT SOMEHOW OR ANOTHER YOU NEEDED A
CONTINUANCE BECAUSE THIS COURT HAD NOT ACTED ON YOUR VOUCHER.
AND THAT WAS JUST ABSOLUTELY, COMPLETELY FALSE.
NOW THE NEXT THING YOU DID IS, YOU TALKED ABOUT THE FACT
THAT YOU HAD, QUOTE, RECENTLY FILED SOME ADDITIONAL REQUESTS.
NOW, RECENTLY, I LOOKED UP THE DEFINITION OF "RECENTLY," AND
THERE ARE SEVERAL DEFINITIONS OF "RECENTLY."
THAT TECHNICALLY ONE COULD SAY THAT YOU MIGHT BE RIGHT.
BECAUSE YOU CANNOT FILE TWO DOCUMENTS CONTEMPORANEOUSLY GIVEN
10
11
AND I SUPPOSE
THE CM/ECF FILING SYSTEM.

BUT I NOTE THAT BOTH OF YOUR REQUESTS WERE FILED ON
12
JANUARY 2ND, WHICH HAPPENS TO COINCIDENTALLY BE THE SAME DAY
13
YOU FILED YOUR MOTION.
14
"RECENTLY" IS NOT NEARLY AS ACCURATE AS SAYING, ALMOST
15
CONTEMPORANEOUSLY WITH THE FILING OF THIS MOTION.
16
SO I SUSPECT THAT PROBABLY THE
AGAIN, I THINK I KNOW WHAT -- IT SEEMS TO ME THAT
17
BASICALLY WHAT YOU WERE TRYING TO DO IS CREATE A FOUNDATION IN
18
THE EVENT THAT I DENY YOUR MOTION FOR A CONTINUANCE, SO THAT
19
WHEN THE CASE GOES UP ON APPEAL, YOU CAN ARGUE TO THE COURT OF
20
APPEALS THAT, LOOK, YOU KNOW, THE JUDGE DIDN'T DO ANYTHING ON
21
THESE REQUESTS THAT I FILED, AND SO, THEREFORE, FORCING US TO
22
GO TO TRIAL AND DEPRIVE MY CLIENT OF DUE PROCESS, ETC.
23
BUT YOUR STATEMENTS WERE NOT REALLY ACCURATE.
AND SO I
24
WANTED TO PUT THAT ON THE RECORD BECAUSE IN CASE THIS DOES GO
25
UP TO THE COURT OF APPEALS, I WANT TO MAKE SURE THE COURT OF
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APPEALS UNDERSTANDS THAT THOSE STATEMENTS ARE SIMPLY FALSE.

NOW, I'M GOING TO TALK ABOUT THE REQUEST THAT YOU MADE,
2
3
BUT I'LL DO THAT WITH YOU ALONE.
I DON'T THINK ANYBODY ELSE
NEEDS TO BE PRESENT WHEN WE TALK ABOUT THOSE REQUESTS.
WE'LL TALK ABOUT THEM LATER.

MR. SCOTT, I KNOW WHAT YOU'RE ABOUT TO SAY.
BUT
YOU ALSO HAVE
A VOUCHER THAT HAS BEEN PENDING FOR QUITE SOME TIME THAT I HAVE
NOT APPROVED.
MR. SCOTT:
CORRECT.
10
THE COURT:
I CAN TELL YOU RIGHT NOW WHY I HAVEN'T
11
APPROVED THAT ONE YET, BUT I DON'T THINK THAT'S REALLY ANYBODY
12
ELSE'S BUSINESS.
13
YOU.
I WOULD JUST AS SOON DO THAT ONE ON ONE WITH
14
MR. SCOTT:
THAT'S FINE.
15
THE COURT:
IF YOU DON'T MIND, WE'LL ADDRESS THAT
16
17
18
19
20
LATER, ONE ON ONE, OKAY.

MR. SCOTT:
AND THERE ARE ALSO TWO ANCILLARY CJA
REQUESTS AS WELL.
THE COURT:
RIGHT.
THOSE WERE FILED, I BELIEVE,
DECEMBER 28TH.
21
MR. SCOTT:
SOMETHING LIKE THAT.
22
THE COURT:
YEAH.
23
SO YOU KNOW.
I'VE LOOKED AT ALL OF THAT, OKAY.
WAS THERE SOMETHING ELSE?
24
MR. SCOTT:
NO.
HAVE THEY BEEN GRANTED, YOUR HONOR?
25
THE COURT:
NO.
WE'RE GOING TO TALK ABOUT THOSE.
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YOU WANT TO TALK ABOUT THEM NOW?
MR. SCOTT:
NO.
THE COURT:
WE CAN, BUT I'D JUST AS SOON --
MR. SCOTT:
I THINK IT IS PROBABLY APPROPRIATE TO DO
THEM EX PARTE.
THE COURT:
ALL RIGHT.
GOOD.
I WANTED TO CLEAR THE
AIR ON THAT.
LIKE TO BE TOLD OR BE -- OR HAVE PEOPLE SAY THINGS ABOUT ME
THAT AREN'T TRUE.
10
11
BECAUSE I KNOW I'M NOT PERFECT, BUT I SURE DON'T
BY THE WAY, IF ANYTHING I SAID, MR. ADAMS, IS NOT TRUE,

NOW IS THE TIME TO GET UP AND SAY IT.
MR. ADAMS:
12
YOUR HONOR, I TRIED TO BE AS ACCURATE AS
13
I COULD BE IN THE STATEMENTS THAT I MADE.
14
WRITTEN THOSE REQUESTS FOR CJA FUNDING ON DECEMBER 31ST.
15
IT'S TRUE, I DIDN'T FILE THEM UNTIL THE SAME DAY I FILED THE
16
MOTION FOR CONTINUANCE.

THE COURT:
17
18
19
ALL RIGHT.
I HAD FILED OR
THANK YOU.
BUT
I APPRECIATE YOUR
BEING CANDID ABOUT IT.

YES?
MR. SCOTT:
20
YOUR HONOR, IN THAT SPIRIT, BECAUSE THE
21
COURT DID INVITE US TO SAY IF THERE IS DISAGREEMENT IN
22
MEMORY --
23
THE COURT:
YEAH, GO AHEAD.
24
MR. SCOTT:
WE ASKED FOR THE STATUS HEARING THE LAST
25
TIME THAT WE WERE HERE.
WE ASKED MR. RIVERA ON THE PHONE FOR
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10
IT.
FOR IT.
THAT I WOULD BE READY TO TRY THIS CASE IN MARCH.
DON'T WANT THE RECORD TO SUGGEST THAT I EVER SAID, YES, MARCH
IS THE DATE I WANT TO TRY THIS, I CAN BE READY FOR MARCH.
AND THERE WAS ALREADY A MOTION, TOO, PENDING AND WE ASKED

AND I, FOR ONE, HAVE NEVER REPRESENTED TO THE COURT
I WOULD ARGUE TO THE CONTRARY.
AND SO I
WE HAD BEEN TELLING THE
COURT FOR SOME TIME THAT THIS CASE WAS TOO VOLUMINOUS TO TRY
WITH INSIDE OF A YEAR, AND WE WOULD NEED MORE TIME.
THINK THE RESPONSE WAS SOMETHING TO THE EFFECT OF, IT WAS A
AND I
10
COMPLIMENT, BUT ONE NOT PARTICULARLY HELPFUL TO OUR ARGUMENT,
11
WHICH WAS, YOU GUYS ARE FINE LAWYERS, I'M SURE YOU'LL DO FINE.
12
AND THAT WAS REALLY KIND OF THE BASIS OF IT.
13
RESPECTFULLY, I FEEL I HAVE TO SAY THAT PART TO STATE THE
14
RECORD.
15
THE COURT:
THAT'S FINE.
AND SO,
MY RECOLLECTION -- IN MY
16
ADVANCED AGE, I WILL ADMIT THAT MY RECOLLECTION SOMETIMES IS
17
NOT WHAT IT SHOULD BE.
18
HEARING DATE SET FOR ANY KIND OF MOTION TO CONTINUE IT THE DAY
19
THAT WE SET THE STATUS CONFERENCE.
20
CONTINUE SOMETHING ELSE.
21
THERE WAS A REQUEST TO CONTINUE A MOTION HEARING, BUT I WAS
22
TOLD THAT THE TRIAL DATE WAS FINE.
23
BUT I DO NOT RECALL THERE BEING A
THERE HAD BEEN A MOTION TO
IN FACT, I WAS ACTUALLY TOLD THAT
SO MAYBE SOMETHING GOT LOST, AND THAT HAPPENS SOMETIMES
24
WHEN YOU TALK THROUGH THIRD-PARTY PEOPLE, BUT I DO NOT REMEMBER
25
THERE BEING A MOTION FOR A CONTINUANCE BEING SCHEDULED ON THE
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11
1
2
DATE THAT WE HAD THE STATUS CONFERENCE.

ANYWAY, MR. ADAMS.
MR. ADAMS:
YOUR HONOR, JUST TO COMPLETE THAT, MY
MEMORY IS THAT IN EARLY DECEMBER, I THINK DECEMBER 2ND,
ALTHOUGH I'M NOT CRYSTAL CLEAR IN MY MEMORY ABOUT THAT, I DID
PLACE A CALL TO YOUR COURTROOM DEPUTY CLERK, ALERTING HIM TO
THE PROBLEM THAT WE SAW COMING.
THE COURT:
RIGHT.
MR. ADAMS:
THAT WE NEEDED TO GET IN AND SEE YOUR
10
HONOR AND TALK ABOUT THE TRIAL DATE.

THE COURT:
11
THAT'S RIGHT.
THAT'S EXACTLY RIGHT.
BUT
12
THERE WAS NO -- TO MY RECOLLECTION, THERE WAS NO MOTION FOR A
13
CONTINUANCE PENDING AT THAT TIME THAT HAD BEEN FILED OR AT
14
LEAST HAD A HEARING SCHEDULED OF THE TRIAL DATE, THAT IS.
15
MAYBE THERE WAS.
I DON'T KNOW.
16
THE CLERK:
17
GAVE PROPOSED DATES.
18
MOTION.
19
MOTION IN LIMINE DATE.
20
DATES, COULD WE KEEP THE MARCH 5TH TRIAL, THEY SAID,
21
QUOTE/UNQUOTE, THAT SHOULD NOT BE A PROBLEM.
22
WAITING FOR A JOINT MOTION.
23
THAT WAS A REQUEST, YOUR HONOR, AND I

AND MR. ADAMS SAID HE WOULD FILE A JOINT
AND I ASKED IF THOSE DATES WOULD WORK IN TERMS OF THE
MR. ADAMS:
AND IF THOSE NEW PROPOSED DEADLINES AND
SO WE WERE
SO WE'RE CRYSTAL CLEAR, I'M ABSOLUTELY
24
CERTAIN THAT I NEVER SAID THE MARCH 5TH TRIAL DATE WOULD NOT BE
25
A PROBLEM.
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12
THE COURT:
HERE IS THE REASON WHY WE HAVE RULES.
NORMALLY, I'VE INSTRUCTED MY COURTROOM DEPUTY NOT TO TALK TO
LAWYERS ABOUT THIS SORT OF STUFF ANYMORE.
EXACTLY WHAT HAPPENS.
CLEAR.
BEFORE YOU FILE A MOTION, YOU GET A HEARING DATE.
HEARING DATE, THAT HEARING DATE IS OUT FAR ENOUGH SO THAT
HOPEFULLY YOU FILE WHAT YOU NEED TO FILE AND THE GOVERNMENT HAS
AN OPPORTUNITY TO PREPARE A RESPONSE.
10
BECAUSE THIS IS
YOU KNOW, THE RULES OF COURT ARE PRETTY
YOU WANT TO CONTINUE A TRIAL DATE, YOU FILE A MOTION.
EVERYTHING IS FILED.
IT'S BEAUTIFUL.
YOU GET A
IT'S ON THE RECORD.
11
ANYBODY CAN LOOK AT IT.
12
COURTROOM DEPUTY, THIS IS EXACTLY -- NOW SEE, WE HAVE A
13
DIFFERENCE OF OPINION AS TO WHAT WAS SAID DURING THAT PHONE
14
CONVERSATION.
15
HOLD ANYBODY TO IT.
16
LISTEN, IT'S ONE THING TO ASK FOR A CONTINUANCE AND TO SAY TO
17
ME, YOU KNOW, JUDGE, WE'RE JUST NOT PREPARED AND WE CAN'T GO
18
FORWARD.
19
WE HAVE TO HAVE A CONTINUANCE BECAUSE, JUDGE, WE SUBMITTED --
20
WE SUBMITTED TO YOU A VOUCHER, AND THERE HAS BEEN NO ACTION
21
TAKEN ON IT BY THE COURT OR WHAT HAVE YOU.
22
DIFFERENT, YOU SEE.
23
WHEN WE DO THESE CALLS, AND CALL MY
BUT WE DON'T HAVE A RECORD OF IT, SO I CAN'T

BUT ALL I CAN SAY IS THAT, YOU KNOW,
AND IT'S ANOTHER THING TO SAY THINGS LIKE, WELL, GEE,
THAT'S A LITTLE
AND I DON'T THINK IT'S NECESSARY.
SO NOW, I DO NOTE, I MIGHT ADD, THAT HAD MY CASE, THE ONE
24
THAT WE HAVE HERE, WAS INDICTED BEFORE JUDGE BURNS' CASE WAS
25
INDICTED, RIGHT?
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MR. SCOTT:
1
2
YES.
HOWEVER, AGAIN, JUDGE BURNS WAS SET
IN JANUARY BEFORE THIS MARCH 1.
THE COURT:
RIGHT.
MR. SCOTT:
AND I DID WANT TO CLEAR SOMETHING UP --
THE COURT:
THAT WASN'T SET AT THE TIME I SET THE
TRIAL DATE.
MR. SCOTT:
IT WAS WITHIN A MATTER OF TWO WEEKS.
THE COURT:
AFTERWARDS?
MR. SCOTT:
CORRECT.
10
THE COURT:
SO JUDGE BURNS SET HIS CASE, WHICH WAS
11
INDICTED BEFORE MINE FOR A TRIAL BEFORE THE TRIAL DATE THAT I
12
HAD SCHEDULED.
13
APPROPRIATE FOR HIS CASE TO GO TO TRIAL IN JANUARY.
14
UNTIL MARCH TO BRING YOUR CASE TO TRIAL, RIGHT?
SO, OBVIOUSLY, HE THOUGHT THAT IT WAS
MR. SCOTT:
15
I GAVE YOU
AND MUCH LIKE THE EXPERIENCE IN HERE, WE
16
ASKED JUDGE BURNS, LET'S HAVE ANOTHER STATUS SO WE CAN PICK AN
17
APPROPRIATE TRIAL DATE.
18
SET IT WHEN HE THOUGHT IT WAS APPROPRIATE TO SET IT.
19
THAT WASN'T A DATE WE PICKED OR A DATE WE SAID WE COULD BE
20
READY.
21
AND HE DECLINED THAT REQUEST, AND HE

SO AGAIN,
I DID WANT TO SAY ONE THING MOSTLY FOR MR. SPANIER'S
22
BENEFIT.
THE COURT MADE A COMMENT THAT IT WAS A RETAINED CASE
23
AND I'M SPENDING MOST OF MY TIME ON THAT.
24
THE COURT:
RIGHT.
25
MR. SCOTT:
NO. 1, WHETHER IT IS RETAINED OR WHETHER
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IT'S A CJA CASE MAKES NO DIFFERENCE HOW I TREAT A CLIENT.
I WANT MR. SPANIER TO KNOW THAT, AND I WANT THE COURT TO KNOW
THAT.
THAT IS VERY IMPORTANT THAT THAT BE ON THE RECORD.
THE COURT:
I WOULD HOPE THAT WOULD BE THE CASE.
MR. SCOTT:
IT IS THE CASE.
AND
AND I DON'T WANT THERE
TO BE ANY INSINUATIONS TO THE CONTRARY.
THE SECOND THING --
THE COURT:
DIDN'T I HEAR THAT AT THE LAST HEARING?
MR. SCOTT:
THE COURT SAID -- THIS IS EXACTLY WHAT
THE COURT SAID, LET ME TAKE A WILD GUESS, MR. SCOTT, LET ME
10
TAKE A WILD GUESS, IS THAT OTHER CASE A RETAINED CASE AND THIS
11
ONE A CJA ONE?
12
PROBABLY ALREADY KNEW THAT FROM THE DOCKET.
AND I SAID, IT IS, AND I THINK THE COURT
THE COURT:
13
I DIDN'T KNOW THAT BECAUSE I DON'T HAVE
14
ANY IDEA WHETHER YOU WERE RETAINED ON THE OTHER CASE OR NOT,
15
MR. SCOTT.
MR. SCOTT:
16
WELL, THE COURT BROUGHT IT UP.
I DIDN'T.
17
IT IS NOTHING THAT I VOLUNTEERED BECAUSE IT IS, FRANKLY, NOT
18
GERMANE.
19
20
NOW THE SECOND THING -THE COURT:
LET ME ASK YOU THIS:
THE OTHER CASE,
MR. SCOTT, WAS SET FOR TRIAL JANUARY 18.
21
MR. SCOTT:
CORRECT.
22
THE COURT:
YOU ASKED JUDGE BURNS FOR A CONTINUANCE
23
ON THAT CASE.
24
MR. SCOTT:
WE DID.
25
THE COURT:
JUDGE BURNS CONTINUED IT TO MARCH 23RD OR
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15
MARCH 24TH, WHICH IS THE DATE THAT WE HAVE THIS CASE SCHEDULED.
MR. SCOTT:
THAT'S RIGHT.
THE COURT:
RIGHT?
MR. SCOTT:
RIGHT.
THE COURT:
SO AS BEST I CAN DETERMINE, THEN, YOU
WOULD HAVE BEEN READY TO GO TO TRIAL ON THAT OTHER CASE IN
MARCH.
8
9
MR. SCOTT:
WE WOULD HAVE, COME HELL OR HIGH WATER,
DONE OUR BEST TO BE READY IN THE TIME AVAILABLE.
AND WE SORT
10
OF NEGOTIATED WITH THE GOVERNMENT THAT THEY WOULDN'T OPPOSE IT
11
IF WE ASKED FOR 60 DAYS, ALL ON THE PREMISE THAT WE WERE GOING
12
TO ENDEAVOR TO MOVE THIS TRIAL.
13
THE COURT:
BECAUSE WHETHER WE HAD --
LET'S GET BACK TO THAT.
JUST A SECOND.
14
BECAUSE YOU SEE, YOU RAISED THE ISSUE, AND I THINK IT'S
15
IMPORTANT.
16
IT OUT, LET'S SEE, SEPTEMBER, OCTOBER, NOVEMBER, DECEMBER,
17
JANUARY, FEBRUARY, MARCH, THAT IS EIGHT MONTHS OUT, GIVE OR
18
TAKE, RIGHT.
19
AT LEAST TWO WEEKS AFTER THAT.
20
JANUARY, RIGHT, WHICH WOULD BE, WHAT, BEST I CAN TELL, THAT
21
WOULD BE ABOUT FIVE MONTHS.
22
I SET THIS TRIAL DATE BACK IN SEPTEMBER.
NOW JUDGE BURNS DIDN'T SET HIS TRIAL DATE UNTIL

AND HE SET YOUR TRIAL DATE FOR
NOW YOU SAID YOU WOULD BE READY WHEN JUDGE BURNS SAID,
23
OKAY, LET'S PICK A DIFFERENT TRIAL DATE.
24
MARCH 23RD OR 24TH, RIGHT?
25
AND I SET
MR. SCOTT:
YOU GUYS AGREED TO
WE SAID WE CAN DO OUR BEST AND WE THINK
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16
WE'LL BE READY IF WE CAN MOVE THIS TRIAL.

THE COURT:
BECAUSE AGAIN --
SO WHAT I'M TRYING TO FIND OUT,
MR. SCOTT, THE THING THAT TROUBLES ME ABOUT THIS CASE IS, WHAT
IS IT OR WHY DO YOU FEEL THAT YOU CAN PREPARE AND BE READY TO
GO TO TRIAL ON THAT OTHER CASE BUT NOT ON THIS CASE?

MR. SCOTT:
6
7
AND THERE ARE ONLY SO MANY HOURS IN THE DAY -THE COURT:
8
9
10
BECAUSE I CAN'T BE IN TWO PLACES AT ONCE,
BUT WHY -- WHY CAN YOU BE READY FOR THE
OTHER CASE BUT NOT THIS CASE?
EVEN THOUGH THIS CASE WAS SET
FOR TRIAL BEFORE THE OTHER DATE WAS SET AND YOU HAD THE CASE.
MR. SCOTT:
11
BECAUSE JANUARY COMES BEFORE MARCH, AND
12
WE WERE TRYING OUR BEST TO PREPARE FOR THE CASE THAT WAS COMING
13
FIRST.
14
JUDGE BURNS WOULD FEEL PARTICULARLY COMFORTABLE MOVING HIS
15
TRIAL DATE BECAUSE HE IS, YOU KNOW, FAIRLY DISCIPLINED WITH HIS
16
CALENDAR, MUCH LIKE YOUR HONOR IS.
17
EXPLAIN LAST TIME, AND YOU KNOW, THIS WAS CLUMSILY DONE AT SOME
18
LEVEL, NO DOUBT.
19
THE GAME OF TELEPHONE THAT YOUR HONOR WAS DESCRIBING.
20
AND WE HAD NO GUARANTEES OR NO REASON TO BELIEVE THAT
AND AS I WAS TRYING TO
PART OF THIS CIRCLES BACK TO THE PROBLEM OF
BECAUSE IT WAS MY UNDERSTANDING, MR. ADAMS' UNDERSTANDING,
21
THAT WE HAD TRIED TO GET IT ON CALENDAR TO DISCUSS A
22
CONTINUANCE.
23
MOVED.
AND I SEE MR. RIVERA IS GOING TO HAVE A DIFFERENT VIEW
24
OF IT.
AND I WASN'T ON THE PHONE, SO I DON'T KNOW, EITHER.
25
BUT I DO KNOW EFFORTS WERE MADE TO TRY TO GET ON CALENDAR, TO
AND WE DID THAT BEFORE THE JUDGE BURNS' DATE WAS
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17
DISCUSS A CONTINUANCE.
UNDERSTANDING, AGAIN THIS IS SEVERAL LEVELS OF THE GAME OF
TELEPHONE, IS THAT THE JUDGE IS NOT -- THE JUDGE DOES NOT WANT
TO MOVE THE DATE, HOW ABOUT MOVING THE MOTIONS DATE INSTEAD, OR
SOMETHING TO THAT EFFECT.
AND, ESSENTIALLY, I THINK, MY
AGAIN, I WASN'T THERE.
BUT THE REASON WE ENDED UP, AND I EXPLAINED THIS LAST
TIME, IN FRONT OF JUDGE BURNS WITH THE TIMING THAT WE DID WAS
BECAUSE WE FELT A SENSE OF IMMEDIACY.
THE LAST TIME WE WERE HERE, THE GOVERNMENT IN THE JUDGE BURNS'
BECAUSE AS I EXPLAINED
10
CASE OWED US SORT OF AN EXTRAORDINARY SUPPLEMENTAL DISCOVERY
11
DISCLOSURE.
12
BE A PARTIAL ANSWER TO WHY WE WERE PREPARING FOR JANUARY,
13
THOUGHT WE MIGHT BE READY FOR A JUDGE BURNS' TRIAL IN MARCH, IS
14
HE ORDERED THE GOVERNMENT TO FILE A BRIEF THAT LAYS OUT EVERY
15
WITNESS, AND EVERY EXHIBIT FOR EVERY OVERT ACT, IN EVERY COUNT
16
IN THE INDICTMENT, WHICH IS A PRETTY EXTRAORDINARY TOOL AND
17
KIND OF AN EXTRAORDINARY THING --
18
19
WHAT JUDGE BURNS DID IN THAT CASE, AND THIS MIGHT
THE COURT:
I DID IT BEFORE.
I KNOW EXACTLY WHAT
HE'S DOING.
20
MR. SCOTT:
IT HASN'T BEEN DONE IN THIS CASE.
21
THE COURT:
NO, IT HASN'T BEEN DONE IN THIS CASE.
22
MR. SCOTT:
SO THE POINT IS, WE DIDN'T WANT TO BE
23
ACCUSED OF TAKING THAT EXTRAORDINARY DISCOVERY DISCLOSURE, THEN
24
TURNING AROUND AND ASKING FOR A CONTINUANCE.
25
CYNICAL VIEW WOULD BE SOME SORT OF GAMESMANSHIP, THAT WE TOOK
I THINK THE
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18
THIS EXTRAORDINARY DISCOVERY TOOL AND THEN WANTED MORE TIME IN
ADVANCE OF TRIAL TO PICK AT IT AND GO THROUGH IT.
WANTED TO GET ON CALENDAR AND MAKE OUR REQUEST BEFORE THE
GOVERNMENT'S BRIEF WAS DUE.
LAST TIME, BUT THAT'S THE REASON FOR THE TIMING AND THE WAY IT
WENT DOWN.
THE COURT:
AND SO WE
OKAY.
AND AGAIN, I EXPLAINED THIS ALL
WELL, ALL RIGHT.
I AM LEFT WITH
THE -- WITH THE UNDERSTANDING THAT -- LET ME TURN TO
MR. WARREN.
10
MR. WARREN, DID YOU FILE A MOTION TO CONTINUE THIS CASE?
11
MR. WARREN:
12
THE COURT:
13
MR. WARREN:
14
THE COURT:
16
MR. WARREN:
THE COURT:
DON'T YOU HAVE IT, YOUR MOTION?

I PRINTED UP EVERYTHING, BUT THAT'S THE
IT IS DOCKET NO. 118.
THAT IS OKAY.
WHEN DID YOU FILE YOUR
MOTION?
20
MR. WARREN:
21
THE COURT:
22
MR. WARREN:
23
IT IS THE ONE MOTION I DIDN'T PRINT
ONE I DIDN'T BRING WITH ME.
18
19
WHEN DID YOU FILE THAT MOTION?
OUT --
15
17
I DID.
JANUARY 7TH.
OKAY.
AND I THINK I JOINED THE PREVIOUS
MOTION AFTERWARD.
24
THE COURT:
25
MR. WARREN:
YOU DID?
YES.
AND MR. ADAMS FILED A WRITTEN
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19
MOTION FOR RECONSIDERATION, WHICH I JOINED.
MAYBE I DIDN'T JOIN IT, BUT YOUR HONOR DENIED IT IN A MINUTE
ORDER THE NEXT DAY.

THE COURT:
RIGHT.
BUT THE COURT --
YEAH, THAT WAS THE MOTION THAT
CONTAINED THE STATEMENT ABOUT MY NOT ACTING ON THE CJA VOUCHER,
ETC.
MR. WARREN:
THE COURT:
MR. WARREN:
I'M NOT SURE IF I DID OR DIDN'T NOW.
THE COURT:
SEE, IT'S IMPORTANT TO KNOW WHETHER YOU
10
11
12
RIGHT.
BUT YOU ACTUALLY FILED A JOINDER?
DID OR YOU DIDN'T.

MR. WARREN:
I BELIEVE I DID, BUT THE DOCKET IS GOING
13
TO SHOW WHETHER I DID OR DIDN'T.
14
AFTER IT WAS DENIED, I FELT THAT ESPECIALLY SINCE AT THE
15
PREVIOUS STATUS HEARING, THAT REALLY THE FOCUS WAS ON THE
16
COURT'S COMMUNICATIONS WITH MY CO-COUNSEL.
17
BIT AT THE END, SAYING I ALSO FELT SOME CONCERNS ABOUT THE
18
TRIAL DATE.
19
BUT AFTER -- YOUR HONOR,
I PIPED IN A LITTLE
BUT THAT I HADN'T SAID VERY MUCH.
SO I WANTED TO PUT ON THE RECORD AS SOMEONE WHO WAS NOT
20
INVOLVED IN IT, WITH THE CASE WITH JUDGE BURNS AT ALL, THAT I
21
REPRESENT DEFENDANT NO. 1 IN THIS CASE.
22
TO KNOW THAT I FELT I WOULDN'T BE ADEQUATELY PREPARED TO START
23
THE TRIAL MARCH 5TH, SEPARATE AND INDEPENDENT OF MY CO-COUNSEL.
24
25
SO I WROTE A BRIEF MOTION.

PAGES, DOCKET NO. 118.
AND I WANTED THE COURT
I THINK IT'S THREE OR FOUR
AND I FILED A MOTION TO RECONSIDER THE
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20
COURT'S DENIAL OF THE CONTINUANCE OF THE TRIAL.
AND IN IT, I
JUST -- IT IS REALLY ABOUT A PAGE AND A HALF.
OF MY CONCERNS ABOUT THE EXTENT OF THE EVIDENCE THAT IS
INVOLVED IN WHAT WE'RE DOING AND WHY I FELT I NEEDED ADDITIONAL
TIME.
I LAID OUT SOME
I CAN ALSO ALERT THE COURT SEPARATE AND APART FROM THAT
THAT YESTERDAY I WAS IN FRONT OF JUDGE HUFF ON ANOTHER FRAUD
CASE, WHERE WE WERE EXPECTING THE COURT -- ASKING THE COURT TO
SET A TRIAL DATE.
I INFORMED HER THAT I WAS STARTING A
10
MULTIPLE-WEEK TRIAL IN THIS COURT ON MARCH 5TH, AND WAS LOOKING
11
FOR A TIME AFTER THAT.
12
FOR ME IN A CO-DEFENDANT CASE THAT SHOULD GO ABOUT A WEEK TO A
13
LITTLE OVER A WEEK, ON FEBRUARY 12TH.
14
IMPEDIMENT TO BEING PREPARED IN THIS TRIAL, AND SO I WANT THE
15
COURT TO BE AWARE OF THAT.
SHE SAID, NO, SO SHE'S NOW SET A TRIAL
16
THE COURT:
17
TAKE A LITTLE BREAK.
18
MINUTES UNTIL 10:00, OKAY.
19
MR. WARREN:
ALL RIGHT.
SO IT'S ANOTHER
YOU KNOW WHAT, I'M GOING TO
LET'S COME BACK IN FIVE MINUTES, 20

THANK YOU.
THANK YOU.
(RECESS TAKEN.)
20
21
THE CLERK:
COURT IS ONCE AGAIN IN SESSION.
22
THE COURT:
ALL RIGHT.
LET ME TURN TO THE
23
GOVERNMENT.
DOES THE GOVERNMENT HAVE ANYTHING -- ANYTHING THAT
24
YOU WANT TO ADD OR SAY IN CONNECTION WITH THIS REQUEST FOR A
25
CONTINUANCE AND WHAT WE HAVE BEEN TALKING ABOUT?
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MS. DEVINE:
1
2
COURT.
MARCH 5TH.
NO, YOUR HONOR.
WE WOULD DEFER TO THE
WE'RE READY TO -- WE'RE READY TO START TRIAL ON
THE COURT:
OKAY.
WELL, WHY DON'T WE -- WELL, LET ME
SAY THIS:
I DO HAVE A CONCERN ABOUT GOING TO TRIAL ON
MARCH 5TH, OR WHATEVER THE DATE IS.
BOTH MR. -- WELL, NOW WE HAVE ALL THREE OF THEM SAYING THEY
CAN'T BE READY TO GO TO TRIAL ON MARCH 5TH.
GO ON MARCH 5TH, AND THERE IS A GUILTY VERDICT RETURNED, AND
HERE IS THE THING, WE HAVE
IF I FORCE THEM TO
10
IT'S ONE OR MORE OF THE DEFENDANTS, YOU KNOW THAT THE ARGUMENT
11
IN THE NINTH CIRCUIT IS GOING TO BE, GEE, GOSH, WE COULDN'T
12
PREPARE FOR TRIAL SO OUR CLIENTS WERE FORCED TO GO TO TRIAL
13
UNPREPARED, ETC.
14
AND, OBVIOUSLY, FOR THOSE -- YOU KNOW, FOR THOSE OF US IN
15
THE LEGAL FIELD, WE UNDERSTAND THAT THAT CAN BE A SYMPATHETIC
16
ARGUMENT.
17
CONVICTED SIMPLY BECAUSE THEIR CLIENTS WEREN'T PREPARED.
18
ISN'T THE WAY THE SYSTEM WORKS.
19
BECAUSE WE CERTAINLY DON'T WANT DEFENDANTS TO BE

THAT
SO GIVEN THAT ALL THREE OF THESE GENTLEMEN HAVE THROWN UP
20
THEIR HANDS AND SAID, WE'RE NOT PREPARED TO GO TO TRIAL, IF I
21
FORCE THEM TO GO TO TRIAL, ALL WE'RE DOING IS CREATING ONE MORE
22
APPEALABLE ISSUE.
23
THIS CASE IF I DON'T HAVE TO RETRY IT, ASSUMING THERE IS A
24
CONVICTION, RIGHT.
25
SAME WAY.
AND THE LAST THING I WANT TO DO IS RETRY
AND I WOULD HOPE THAT YOU WOULD FEEL THE
IT DOESN'T DO YOU ANY GOOD -- MAYBE IT DOES DO YOU
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22
SOME GOOD TO GET A CONVICTION.
YOU HAVE A CONVICTION, BUT IN THE END IT GOES UP ON APPEAL, AND
IT GETS REVERSED, AND WE WIND UP DOING IT ALL OVER AGAIN.
A WASTE OF RESOURCES.
MS. DEVINE:
DOES IT STOP?
MONTHS AND --
IT'S
I UNDERSTAND YOUR POSITION, BUT WHEN
WE'VE BEEN PREPARING FOR TRIAL FOR THE LAST NINE
THE COURT:
YOU GET A STATISTIC THAT SHOWS
I KNOW, I'LL SET A TRIAL DATE AND
MR. WARREN WILL GO BEFORE JUDGE HUFF OR SOME OTHER JUDGE AND
10
THEY'LL SET A TRIAL DATE AND THEY'LL COME IN AND SAY, GEE,
11
JUDGE, WE CAN'T BE READY TO GO TO TRIAL, AND ANOTHER JUDGE
12
SAID -- YOU KNOW, YOU'RE RIGHT.
13
EXACTLY WHAT YOU'RE SAYING.
14
IN TIME I HAVE TO -- I'LL GIVE THEM ENOUGH ROPE THAT THEY'RE
15
EITHER GOING TO BE READY OR, WELL, SOME OTHER THINGS CAN
16
HAPPEN, I SUPPOSE.
17
YOU'RE RIGHT.
I UNDERSTAND
BUT YOU SEE, I GUESS AT SOME POINT
BUT BEFORE I MAKE A DECISION ON THE MOTION TO CONTINUE,
18
LET ME HEAR FROM MR. WARREN AND THE OTHER DEFENDANTS ON THE
19
MOTION TO SEVER.
20
WE HAVE SOME TIME, LET'S TALK ABOUT THE MOTION TO SEVER.
21
LET'S HEAR FROM COUNSEL ON YOUR REASONS FOR WHY I SHOULD
22
SEVER.
23
DEFENDANTS, RIGHT?
24
25
SO WHY DON'T WE ARGUE -- LET'S TALK -- SINCE
AND I ASSUME YOU'RE ASKING ME TO SEVER ALL THREE

YOU WANT THEM ALL THREE TO GO SEPARATELY?
MR. WARREN:
NO.
WHAT WE'RE ASKING IS FOR
MR. SPANIER TO BE SEPARATED FROM MR. MC CLAIN AND MR. MICELI.
Exhibit 5
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1
1
2
3
4
PLAINTIFF,
V.
DOUGLAS MC CLAIN, JR., AND

JEFFREY SPANIER,
8
9
DEFENDANTS.
. . . . . . . . . . . . . . . .
.
.
.
.
.
.
.
.
.
.
NO. 12-CR-0918
JANUARY 29, 2013
10:38 A.M.
10

11
12
13
APPEARANCES:
14
FOR THE PLAINTIFF:

BY: MICHAEL WHEAT, ESQ.
BY: JOSEPH ORABONA, ESQ.
FOR THE DEFENDANT,

DOUGLAS MC CLAIN, JR.:
LAW OFFICES OF MARK F. ADAMS

BY: MARK F. ADAMS, ESQ.
FOR THE DEFENDANT,

JEFFREY SPANIER:

15
16
17
18
19
20
21
22
23
24
25
COURT REPORTER:

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SAN DIEGO, CALIFORNIA, JANUARY 29, 2013, 10:38 A.M.
1
2
* * * *
3
THE CLERK:
TWO ON CALENDAR, CASE NO. 12-CR-0918, USA
VS. JAMES T. MICELI, DOUGLAS MC CLAIN, JR., AND JEFFREY T.
SPANIER, ON FOR MOTION IN LIMINE HEARING.

MR. SCOTT:
MR. SPANIER.
PERMISSION AT THE LAST COURT DATE.
HE IS NOT PRESENT, PURSUANT TO THE COURT'S
MR. ADAMS:
10
TIM SCOTT, FOR
MARK ADAMS, ON
11
BEHALF OF DOUGLAS MC CLAIN, JR., ALSO NOT PRESENT.
12
PRESENCE HAVING BEEN WAIVED.

MR. WARREN:
13
14
WARREN, FOR MR. MICELI.

THE COURT:
15
HIS
JEREMY
I ASSUME THE COURT HAS HEARD --
I HAVE HEARD.
TO MAKE SURE I HAVE THE
16
STRAIGHT INFORMATION, I HAVE HEARD THAT MR. MICELI HAD SHOT
17
HIMSELF.
18
MR. WARREN:
19
THE COURT:
20
BUT I WAS NOT AWARE OF WHETHER OR NOT IT
WAS FATAL --
21
MR. WARREN:
22
THE COURT:
23
MR. WARREN:
24
THE COURT:
25
THAT'S CORRECT.
HE KILLED HIMSELF.
-- I THINK IT WAS FATAL, CORRECT?
CORRECT, HE KILLED HIMSELF.
WELL, THAT IS TRAGIC.
YOU KNOW, LEGAL
PROBLEMS AND LEGAL MATTERS CAN ALWAYS BE RESOLVED, BUT TAKING
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ONE'S LIFE IS A PRETTY FINAL STEP.
SO I'M SORRY TO HEAR THAT.
MR. WARREN, I DON'T KNOW THAT THERE IS ANYTHING ELSE FOR
YOU TO DO IN CONNECTION WITH THIS MATTER; SO, THEREFORE, I'M
GOING TO RELIEVE YOU FROM FURTHER REPRESENTATION, AND YOU ARE
FREE TO GO.
MR. WARREN:
6
7
COMMENTS.
FAMILY.
9
10
THANK YOU VERY MUCH, AND I'LL CONVEY THAT TO THE
WE'RE ON FOR A PRETRIAL VIOLATIONS HEARING.
THE COURT:
12
MR. WARREN:
14
15
16
I ASSUME
THAT'S VACATED IN FRONT OF JUDGE CRAWFORD?
11
13
YOUR HONOR, I APPRECIATE THE COURT'S
THAT IS VACATED.
I'LL GO DOWN AND LET THEM KNOW.
I THINK
THEY ALREADY KNOW, ANYWAY.

THE COURT:
THANK YOU.
I TOLD THEM.
I TALKED TO JUDGE CRAWFORD.
I APPRECIATE YOUR SERVICES, MR. WARREN.
MS. DEVINE:
AND GOOD MORNING, YOUR HONOR.
FOR THE
17
RECORD, FAITH DEVINE, JOSEPH ORABONA, AND MICHAEL WHEAT, ON
18
BEHALF OF THE UNITED STATES.
19
THE COURT:
ALL RIGHT.
WELL, NOT A GREAT WAY TO
20
START THE MORNING, WHEN YOU GET A MESSAGE TELLING YOU THAT
21
SOMEONE HAS TAKEN THEIR LIFE.
22
PRETTY SAD.
OKAY, WELL, WE HAVE TO MOVE ON WITH BUSINESS AS USUAL,
23
UNFORTUNATELY.
24
TAKEN SOME MOTIONS UNDER CONSIDERATION.
25
I BELIEVE WE HAD SCHEDULED TODAY'S DATE.
FIRST OF ALL, LET ME APOLOGIZE TO MR. SCOTT.
I HAD
I TOLD YOU
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THAT I WOULD HAVE YOUR VOUCHER APPROVED BY TODAY.
I TRIED TO DO IT ON FRIDAY, AND I WAS WORKING WITH OUR
FINANCIAL -- THE HEAD OF OUR FINANCIAL DEPARTMENT ON FRIDAY --
LATE, LATE FRIDAY, AND OUR COMPUTER SYSTEM WENT DOWN.
NOT ABLE TO DO IT.
PRETTY BUSY DAY FOR ME, SO I DIDN'T GET TO DO IT.
DO IT TODAY, OKAY.
8
9
I DID NOT.
I WAS
AND YESTERDAY, AS YOU PROBABLY KNOW, WAS A

BUT I WILL
TURNING MY ATTENTION TO THE MOTIONS THAT WERE PENDING.

THE FIRST THING I WANT TO TALK ABOUT ARE THE MOTIONS TO SEVER.
10
I HAVE CONSIDERED THE MOTIONS TO SEVER.
11
REFLECTION AND RESEARCH, I'VE CONCLUDED THAT THE MOTIONS TO
12
SEVER WILL BE DENIED.
13
TRIALS.
14
THAT IT OUTWEIGHS THE DOMINANT CONCERN WITH JUDICIAL ECONOMY
15
AND COMPELS THE EXERCISE OF THE COURT'S DISCRETION TO SEVER.
16
AND AFTER MUCH
RULE 8 REFLECTS FOR PREFERENCE FOR JOINT
THE TEST IS WHETHER JOINDER SO MANIFESTLY PREJUDICIAL
IN ORDER TO OBTAIN SEVERANCE ON THE GROUNDS OF
17
IRRECONCILABLE DEFENSES, THE DEFENDANTS MUST SHOW THAT THE
18
ACCEPTANCE OF ONE PARTY'S DEFENSE WILL PRECLUDE THE ACQUITTAL
19
WITH THE OTHER PARTY.
20
OF THE DEFENDANT'S DEFENSE IS SO IRRECONCILABLE WITH THE CORE
21
OF HIS OWN DEFENSE THAT THE ACCEPTANCE OF THE CO-DEFENDANT'S
22
THEORY BY THE JURY PRECLUDES ACQUITTAL OF THE DEFENDANT.
23
WHEN A DEFENDANT WILL SHOW THAT THE CORE
I'M READING FROM CASES THAT I BELIEVE TO BE ON POINT, AND
24
THAT I BELIEVE TO BE APPLICABLE TO MY DECISION IN CONNECTION
25
WITH THIS MATTER.
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WITH REGARDS TO THE EXCULPATORY TESTIMONY POSSIBILITY,
AGAIN, WHEN REASON FOR SEVERANCE IS THE NEED FOR A
CO-DEFENDANT'S TESTIMONY, THE THRESHOLD SHOWING REQUIRED OF THE
DEFENDANT IS, ONE, THAT HE WOULD CALL A DEFENDANT AT A SEVERED
TRIAL; TWO, THAT THE CO-DEFENDANT WOULD, IN FACT, TESTIFY; AND
THREE, THAT THE TESTIMONY WOULD BE FAVORABLE TO THE MOVING
PARTY.
I DON'T BELIEVE THAT SHOWING HAS BEEN MADE.
BY THE WAY, I THINK -- WELL, I'LL GET TO THAT IN A MINUTE.
WITH REGARDS TO THE MOTION TO SEVER ON THE GROUNDS THAT IT
10
WOULD DENY THE DEFENDANT THE RIGHT TO CONFRONT AND
11
CROSS-EXAMINE WITNESSES, THERE IS REALLY VERY LITTLE DETAIL
12
THAT'S BEEN PROVIDED TO ME AS TO HOW THAT WOULD APPLY IN THIS
13
CASE.
14
APPROPRIATE JURY INSTRUCTIONS IF NEED BE.
15
THAT A SHOWING HAS BEEN MADE THAT WOULD SHOW THAT JOINDER WOULD
16
BE SO MANIFESTLY PREJUDICIAL TO OUTWEIGH THE BENEFITS OF A
17
JOINED TRIAL, PARTICULARLY IN A CASE LIKE THIS, WHERE
18
CONSPIRACY IS BEING ALLEGED.
19
IN ANY EVENT, I THINK THAT CAN PROBABLY BE CURED BY

AND I DON'T THINK
LASTLY, THE ISSUE OF GUILT BY ASSOCIATION.
AGAIN, THAT
20
CAN BE DEALT WITH, I BELIEVE, BY CAREFUL INSTRUCTION TO BE
21
GIVEN BY ME.
22
JURY INSTRUCTIONS, I AM NOT OPPOSED TO COUNSEL SUBMITTING
23
APPROPRIATE JURY INSTRUCTIONS FOR ME TO GIVE TO THE JURY, NOR
24
AM I OPPOSED TO BEING ASKED IF EITHER SIDE FEELS THAT A JURY
25
INSTRUCTION SHOULD BE GIVEN AT ANY PARTICULAR TIME IN ORDER TO
AND I REMIND COUNSEL THAT ALTHOUGH I GIVE THE
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CURE SOME PARTICULAR ISSUE, PROVIDED IT IS DONE IN A RESPECTFUL
MANNER, AND HOPEFULLY WITHOUT TAINTING THE JURY.
NOT UNMINDFUL OF THAT.
I'M CERTAINLY
SO IF YOU BELIEVE AN APPROPRIATE INSTRUCTION IS NEEDED AT
A PARTICULAR TIME, IF YOU WILL SIMPLY ASK ME TO DO THAT,
PERHAPS ASK TO COME UP TO SIDE BAR -- I WOULD HOPE THAT YOU
WOULD KEEP THESE TO A MINIMUM, BUT IF YOU DO ASK FOR SIDE BAR,
ASK ME TO GIVE AN INSTRUCTION, PARTICULARLY HAVE THE
INSTRUCTION PREPARED AND HAVE SHOWN IT TO THE OTHER SIDE,
10
ANTICIPATING THE ISSUE WOULD COME UP, I'LL BE MORE THAN HAPPY
11
TO GIVE THE INSTRUCTION AT THAT TIME.
12
GETTING TO THE MOTION FOR LAUNDERING, MONEY LAUNDERING,
13
THE TEST FOR THE SUFFICIENCY OF THE INDICTMENT IS NOT WHETHER
14
IT COULD HAVE BEEN FRAMED IN A MORE SATISFACTORY MANNER, BUT
15
WHETHER IT CONFORMS TO THE MINIMUM CONSTITUTIONAL STANDARDS.
16
SECTION 1957(A) PROVIDES THAT WHOEVER KNOWINGLY ENGAGES, OR
17
ATTEMPTS TO KNOWINGLY ENGAGE IN A CRIMINAL TRANSACTION IN
18
CRIMINALLY-DERIVED PROPERTY THAT IS OF A VALUE GREATER THAN
19
$10,000, AND IS DERIVED FROM SPECIFIED UNLAWFUL ACTIVITY, SHALL
20
BE PUNISHED AS PROVIDED IN SUBSECTION B.
21
HERE THE INDICTMENT PRETTY CLOSELY MIRRORS THE STATUTORY
22
LANGUAGE.
IT CHARGES THAT THE DEFENDANTS DID KNOWINGLY ENGAGE
23
IN MONETARY TRANSACTIONS AND CRIMINALLY-DERIVED PROPERTY, WITH
24
A VALUE GREATER THAN $10,000, WHICH PROPERTY WAS, IN FACT,
25
DERIVED FROM SPECIFIED UNLAWFUL ACTIVITY, TO WIT, MAIL, WIRE,
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2
AND SECURITIES FRAUD.

AGAIN, I BELIEVE THAT ANY AMBIGUITY -- I BELIEVE THAT
KNOWINGLY, IN THE SENSE OF THE INDICTMENT, AND IN THE SENSE OF
THE STATUTE REFERS TO NOT ONLY THE TRANSACTION, MONETARY
TRANSACTION, BUT ALSO THAT THE PROPERTY WAS, IN FACT, DERIVED
FROM SPECIFIED UNLAWFUL ACTIVITY.
AGAIN, I BELIEVE THAT THAT IS AN ISSUE THAT CAN BE
CLARIFIED TO THE JURY BY APPROPRIATE JURY INSTRUCTIONS.
BEING THE CASE, THE MOTIONS TO SEVER AND DISMISS THE MONEY
10
11
THAT
LAUNDERING CHARGES ARE DISMISSED.

NOW, PERHAPS -- NOT UNMINDFUL OF THE TRAGEDY THAT WE
12
LEARNED ABOUT THIS MORNING, I CONSIDERED THE DEFENDANT'S MOTION
13
TO CONTINUE THE TRIAL DATE.
14
15
BY THE WAY, YOU HAD A MOTION TO CONTINUE THE TRIAL DATE

BEFORE JUDGES BURNS, DID YOU NOT?
16
MR. SCOTT:
WE DID, YOUR HONOR.
17
THE COURT:
WHAT WAS THE RESULT OF THAT?
18
MR. SCOTT:
IT WAS DENIED.
WE'RE CONFIRMED FOR
19
FEBRUARY 20TH.
20
THAT TIME IT WAS PENDING, BUT WE WERE NOT OPTIMISTIC.
21
AND I THINK I DID MENTION TO YOUR HONOR THAT AT
THE COURT:
OKAY, HERE IS THE THING, AS I INDICATED
22
PREVIOUSLY, NO. 1, I CAN'T IMAGINE THAT IF I HAVE BOTH COUNSEL
23
TELLING ME THEY'RE NOT PREPARED, AND THEY'RE NOT READY TO GO TO
24
TRIAL ON THE DATE THAT WE HAVE SCHEDULED, NOTWITHSTANDING THE
25
FACT THAT I KNOW I TOLD COUNSEL A LONG TIME AGO TO BE READY,
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AND NOTWITHSTANDING THE FACT THAT THIS TRIAL WAS SET A LONG
TIME AGO, AND NOTWITHSTANDING THE FACT THAT WE'VE HAD ALL OF
THESE VARIOUS MOTIONS AND THINGS GOING ON, THE DEFENDANTS HAVE
A RIGHT TO A FAIR TRIAL.
AND I CAN'T VERY WELL DENY THEM A FAIR TRIAL BY FORCING
THEIR LAWYERS TO GO TO TRIAL WHEN THEY'RE NOT PREPARED TO GO TO
TRIAL.
WOULD BE PROBABLY SLIM TO NONE.
BEING FILED AND PROBABLY BEING GRANTED ON THAT BASIS WOULD
10
11
EVEN IF I WANTED TO, THE ODDS OF THAT SURVIVING APPEAL

THE ODDS OF A 2255 PETITION
PROBABLY BE CONSIDERABLE.
SO WHAT I'M GOING TO DO IS, I'M GOING TO GRANT THE
12
DEFENSE'S MOTION FOR A CONTINUANCE.
13
THIS MATTER TO A DATE ABOUT 60 DAYS OUT.
14
ADDITIONAL 60 DAYS TO PRESENT.
15
BETWEEN THE TIME THAT YOU TRY YOUR CASE BEFORE JUDGE BURNS AND
16
THIS TRIAL.
17
NOW I'M GOING TO CONTINUE

THAT WILL GIVE YOU AN
THAT GIVES YOU SOME TIME
FOLKS, UNLESS MY CALENDAR -- UNLESS SOMETHING HAPPENS THAT
18
I AM NOT ABLE TO GO TO TRIAL ON THAT DAY, WE WILL GO TO TRIAL
19
ON THAT DAY.
20
SCHEDULES TO MAKE SURE YOU'RE ABLE TO GO TO TRIAL ON THAT DAY.
21
22
SO WHATEVER HAPPENS, YOU HAVE TO REARRANGE YOUR
SO I BELIEVE THE CURRENT TRIAL DATE IS MARCH -- WHAT IS

IT, MARCH 23RD?
23
MR. ADAMS:
MARCH 5TH, YOUR HONOR.
24
THE COURT:
ALL RIGHT.
25
HOW LONG DID WE ANTICIPATE
THIS CASE WAS GOING TO TAKE TO TRY, TWO WEEKS?
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MS. DEVINE:
WOULD TAKE TWO WEEKS.
YEAH, WE BELIEVE THE GOVERNMENT'S CASE
THE COURT:
MATTER FOR MAY 14TH.
POSITIVE.
BELIEVE THAT I HAVE SOMETHING I HAVE TO ATTEND TO IN MAY, BUT I
THINK IT'S THE FIRST WEEK IN MAY.
DOESN'T WORK, WE'LL START TRIAL MAY 21ST.
THAT YOU LEAVE THE WEEK OF THE 14TH, THE 21ST, AND THE 28TH
I'M GOING TO SCHEDULE THE
NOW I'M DOING THAT -- I'M NOT ABSOLUTELY
I DON'T HAVE THE INFORMATION IN FRONT OF ME, BUT I
10
FREE.
11
WEEKS, OKAY.
12
ALL RIGHT.
IN THE EVENT THAT MAY 14TH

SO I WOULD SUGGEST
BECAUSE WE WILL GO TO TRIAL SOMETIME DURING THOSE THREE
WITH REGARDS TO MOTIONS IN LIM, THERE ARE SEVERAL MOTIONS
13
IN LIM.
14
POINT IN TIME, I DON'T THINK THERE IS ANY REASON FOR ME TO RULE
15
ON THOSE UNLESS YOU WANT ME TO DO THAT.
16
THAT, I'LL GIVE IT A SHOT.
17
POSTPONE THE MOTIONS IN LIM UNTIL -- HOW ABOUT MARCH 5TH, WHICH
18
IS THE DATE THAT WE HAD PLANNED TO START TRIAL?
19
AT 9:30; THAT WOULD GIVE US PLENTY OF TIME.
20
I'VE LOOKED AT SOME OF THEM, BUT FRANKLY, AT THIS
MR. ADAMS:
IF YOU WANT ME TO DO
BUT I WOULD SUGGEST THAT WE
WE COULD DO IT
YOUR HONOR, MAY I SUGGEST WE GO A LITTLE
21
CLOSER TO THE NEW TRIAL DATE SO THAT AS THINGS KIND OF COME
22
TOGETHER, WE MAY WANT TO EITHER WITHDRAW SOME OF THOSE MOTIONS,
23
OR UPDATE THEM, OR FILE EVEN ONE OR TWO OTHERS?
24
25
THE COURT:
WELL, THAT SENDS A CHILL UP MY SPINE WHEN
YOU SAY THAT YOU MIGHT WANT TO FILE SOME MORE MOTIONS,
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MR. ADAMS.
HEART.
3
4
THOSE ARE NOT WORDS THAT ARE NEAR AND DEAR TO MY
NOW THE FIRST THING YOU SAID WAS VERY -- YOU KNOW, YOU
SAID YOU MIGHT WANT TO WITHDRAW SOME OF THOSE -MR. ADAMS:
MAYBE I SHOULD HAVE BURIED THAT IN THE
MIDDLE AND SAID, EITHER WITHDRAW SOME OR CHANGE THEM AROUND A
LITTLE.
I THINK WE'LL KNOW MORE AS WE GET CLOSER, YOUR HONOR.
THE COURT:
I KNOW.
MR. SCOTT:
WHAT I THINK MR. ADAMS IS TRYING TO SAY
10
IS IF WE COULD, PERHAPS, FOCUS ON KEY ISSUES AND SAVE TRIAL
11
DATES.
12
MR. ADAMS:
THAT'S WHAT I WAS TRYING TO SAY.
13
THE COURT:
THAT'S WHAT YOU MEANT TO SAY.
14
MR. ADAMS:
YES.
15
THE COURT:
DOES THE GOVERNMENT HAVE ANY OBJECTION TO
16
MY SETTING THE MOTIONS IN LIM A LITTLE CLOSER TO THE TRIAL
17
DATE?
18
MS. DEVINE:
THE ONLY ISSUE THAT I HAVE WITH THAT,
19
YOUR HONOR, IS THAT SOME OF OUR MOTIONS ARE ACTUAL MOTIONS THAT
20
ARE GOING TO PRESERVE JUDICIAL RESOURCES, LIKE, FOR EXAMPLE,
21
OUR MOTIONS TO ADMIT SUMMARY CHARTS, AND EVIDENCE UNDER 90211.
22
AND THE REASON WHY WE DO THAT WELL IN ADVANCE OF TRIAL IS SO WE
23
DON'T HAVE TO INCONVENIENCE A LOT OF BANK CUSTODIANS AND PEOPLE
24
TO TRAVEL ALL ACROSS THE COUNTRY.
25
SO WE --
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THE COURT:
WHY DO WE HAVE TO DO THIS ALL IN ONE DAY?
HOW ABOUT IF WE ADDRESS THOSE ON MARCH 5TH, AND WE'LL SET A
SUBSEQUENT -- AS I RECALL, THERE ARE 609, 404 MOTIONS -MR. SCOTT:
I THINK I CAN ADDRESS MS. DEVINE'S
CONCERNS.
EVERYONE NOW, SPEAKING FROM MR. SPANIER ONLY, I DO NOT HAVE AN
OBJECTION TO USING CUSTODIAN OF RECORDS' DECLARATIONS.
8
9
THE 90211 IS CUSTODIAN OF RECORDS.
AND I CAN TELL
IN TERMS OF THE SUMMARY ISSUES, THE COMPLAINT I HAD AT THE

TIME WAS THAT I WAS NOT ABLE TO DO THE HOMEWORK AND CHECK THE
10
NUMBERS TO MAKE SURE THAT THE SUMMARIES ARE ACCURATE.
11
BECAUSE THE COURT WAS GOOD ENOUGH TO GIVE US TIME TO PREPARE
12
FOR TRIAL, I DON'T THINK THAT WILL BE AN ISSUE, EITHER.
13
BUT
SO I CAN SAY NOW THERE IS NO OBJECTION TO THE CUSTODIAN OF
14
RECORDS.
I CAN CERTAINLY REPRESENT THAT I DON'T ANTICIPATE ANY
15
PROBLEM SO LONG AS THE GOVERNMENT'S MATCHES OUT ON THE SUMMARY
16
EXHIBITS.
THE COURT:
17
WHY DON'T WE DO THIS:
HOW ABOUT IF WE
18
SET MARCH 5TH, AT 9:30 A.M., FOR THOSE TWO MOTIONS.
19
OBVIOUSLY, IF, IN FACT, COUNSEL DO NOT HAVE ANY OBJECTIONS,
20
THEN YOU CAN JUST SIMPLY FILE A STIPULATION, IF YOU WOULD.
21
THEN WE'LL VACATE THAT DATE, AND THAT WILL TAKE CARE OF THAT.
22
OTHER THAN THAT, THEN WE'LL SET THE FINAL MOTIONS IN LIM
23
HEARING.
24
THAT WORK?
25
NOW,
LET'S SHOOT FOR APRIL 23RD, AT 9:30 A.M., OKAY.
MR. ADAMS:
YES, SIR.
AND
WILL
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MS. DEVINE:
YES, YOUR HONOR.
MR. SCOTT:
YES, YOUR HONOR.
THE COURT:
ANYTHING ELSE WE NEED TO ADDRESS?
MR. ADAMS:
YOUR HONOR, AS TO MR. MC CLAIN'S PRESENCE
FROM THE EAST COAST, DOES HE NEED TO BE HERE ON THE MARCH 5TH
DATE?
THE COURT:
LOOK, HERE IS WHAT I THINK:
IF, IN FACT,
IT'S STIPULATED THAT -- IF THERE IS A STIPULATION, THE ANSWER
IS NO.
IF THERE IS NO STIPULATION, I THINK HE SHOULD BE HERE.

MR. WHEAT:
10
AS LONG AS THERE IS AN ACKNOWLEDGMENT
11
FILED BY BOTH DEFENDANTS AS TO THE TRIAL DATE, WE'RE SATISFIED
12
WITH THAT.
THE COURT:
13
ALL RIGHT.
SO I SAID THAT THEY WOULD
14
HAVE TO BE HERE NEXT MONDAY, RIGHT, UNLESS I GET AN
15
ACKNOWLEDGMENT OF THE TRIAL DATE THAT I HAVE SET TODAY BY NOT
16
LATER THAN FRIDAY OF THIS WEEK.
17
ACKNOWLEDGMENT OF THE TRIAL DATE BY FRIDAY, THEN THEY NEED NOT
18
BE HERE ON MONDAY.
19
OKAY.
SO IF YOU FILE AN
I'LL SIMPLY TAKE THAT HEARING OFF CALENDAR,
20
MR. ADAMS:
GREAT.
21
THE COURT:
AND WITH REGARDS TO THE HEARING ON MAY --
22
THAT I JUST SET FOR MARCH 5TH, AGAIN, IF THERE IS A
23
STIPULATION, THEN, OBVIOUSLY, THEY DON'T HAVE TO BE HERE, OKAY.
24
25
GREAT.
ANYTHING ELSE?
MS. DEVINE:
NO, YOUR HONOR.
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THE COURT:
1
2
DISMISS MR. MICELI OR NOT.

MR. WHEAT:
3
4
I DON'T KNOW IF WE NEED A MOTION TO
WE DO NEED A MOTION, AND WE WILL FILE ONE
WHEN WE HAVE THE APPROPRIATE DOCUMENTATION TO SUPPORT IT.
THE COURT:
OKAY.
MR. WHEAT:
OKAY.
AND I ANTICIPATE THAT IT IS GOING
TO TAKE A WEEK OR TWO BEFORE THAT DOCUMENTATION IS PRESENTED,
AND WE'LL FILE A FORMAL MOTION.
THE COURT:
GOOD.
ANYTHING ELSE?
10
MR. SCOTT:
NOT REGARDING THIS CASE, YOUR HONOR.
11
APPRECIATED YOUR HONOR'S COMMENTS ABOUT THE VOUCHER IN THE
12
SPANIER CASE.
13
VOUCHERS THAT THE COURT HAD A QUESTION ABOUT.
14
HOMEWORK ON THE OTHER ONES, BUT COULD I HAVE A WORD WITH YOUR
15
HONOR WHEN WE'RE DONE HERE ABOUT THE SECOND ONE?
THE COURT MIGHT RECALL THAT THERE WERE TWO
THE COURT:
16
17
CONCERNS.
18
ABSOLUTELY.
I'VE DONE MY
I DID, TOO, AND I'VE RESOLVED MY
BUT IF YOU WANT TO TALK TO ME ABOUT IT, SURE.
19
MR. SCOTT:
DEPENDS ON HOW THE COURT RESOLVED IT.
20
THE COURT:
ALL RIGHT.
21
22
UNLESS ANYONE HAS ANYTHING
ELSE, YOU'RE EXCUSED.

MR. SCOTT, YOU CAN REMAIN.
23
MR. ADAMS:
24
MS. DEVINE:
25
MR. SCOTT:

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(RECESS AT 10:54 A.M.)
---000---
3
4
I HEREBY CERTIFY THAT I AM A DULY APPOINTED,
QUALIFIED AND ACTING OFFICIAL COURT REPORTER FOR THE UNITED
STATES DISTRICT COURT; THAT THE FOREGOING IS A TRUE AND CORRECT
TRANSCRIPT OF THE PROCEEDINGS HAD IN THE AFOREMENTIONED CAUSE;
THAT SAID TRANSCRIPT IS A TRUE AND CORRECT TRANSCRIPTION OF MY
10
11
12
CONFERENCE.
13
DATED:
NOVEMBER 2, 2013, AT SAN DIEGO, CALIFORNIA
14
15
16
17
18
19
20
21
22
23
24
25
_________________________________
S/DEBORAH M. O'CONNELL, CSR #10563
Exhibit 6
(269 of 573)
Case:
Case 14-50306,
3:12-cr-00918-JM
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1
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5

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PLAINTIFF,
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V.
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JEFFREY SPANIER,
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10
DEFENDANT.
. . . . . . . . . . . . . . . .
.
.
.
.
.
.
.
.
.
.
NO. 12-CR-0918
JUNE 10, 2013
2:45 P.M.
11
12
13

14
APPEARANCES:
15
FOR THE PLAINTIFF:

BY: TODD ROBINSON, ESQ.
FOR THE DEFENDANT:

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17
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19
20
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COURT REPORTER:
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SAN DIEGO, CALIFORNIA, JUNE 10, 2013, 2:45 P.M.
1
2
THE CLERK:
3
4
USA VS. JEFFREY T. SPANIER, STATUS HEARING.

MR. SCOTT:
5
6
MR. SPANIER.
OFF THE RECORD.
GOOD MORNING, TIM SCOTT, PRESENT FOR
HIS PRESENCE IS WAIVED BASED ON OUR DISCUSSION
THE COURT:
8
9
* * * *
SEVEN ON CALENDAR, CASE NO. 12-CR-0918,
MY RECOLLECTION.
RIGHT.
I REMEMBER THAT.
OKAY, REFRESH
AS I RECALL, THE ISSUE WAS THAT EVERYBODY
10
WANTED TO TALK TO THE JURORS AND FIND OUT WHETHER OR NOT THERE
11
WAS A LIKELIHOOD THAT THE CASE WAS GOING TO BE RETRIED.

MR. SCOTT:
12
YES, YOUR HONOR.
THAT WAS THE FIRST
13
ISSUE.
14
HEARING WAS THE GOVERNMENT'S POSITION ON A RETRIAL AND DATES
15
FOR THE RETRIAL.
16
ARISEN TWO SEPARATE ISSUES SINCE THEN:
17
GOVERNMENT'S POST-TRIAL CONDUCT AND CONTACT WITH JURORS; AND A
18
MEMBER OF THE DEFENSE TEAM IS ISSUE NO. 2; AND THEN THIRDLY, AN
19
ISSUE REGARDING THE VERDICT THAT WAS RENDERED IN MR. MC CLAIN'S
20
FORFEITURE PROCEEDING, THE BIFURCATED FORFEITURE PROCEEDING,
21
THAT TOOK PLACE AFTER MR. SPANIER AND I HAD BEEN EXCUSED.
22
AND THE PURPOSE THAT WE HAD IN MIND WHEN WE SET THE
THAT REMAINS ISSUE NO. 1.
THE COURT:
THERE HAVE ALSO
ONE, REGARDING THE
THAT IS NOT REALLY AN ISSUE FOR ME TO
23
ADDRESS TODAY.
MY RECOLLECTION IS THAT THE ONLY VERDICT WITH
24
REGARDS TO THE FORFEITURES WAS WITH REGARDS TO ANY CLAIM THAT
25
MR. MC CLAIN MAY HAVE TO THE ASSETS.
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MR. SCOTT:
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IS THE COURT'S VIEW OF IT, THEN, PERHAPS, THAT RESOLVES IT --
3
4
WELL, IF IT'S READ THAT WAY, AND IF THAT
THE COURT:
I DON'T KNOW HOW IT COULD BE ANYTHING
MR. SCOTT:
WELL, THE REASON I'M CONCERNED IS THAT
ELSE.
5
6
THE WAY THE VERDICT FORM WAS STYLED, IS THAT EXPLICITLY A
NUMBER OF THE ITEMS OF PROPERTY ARE, NO. 1, MR. SPANIER'S HOME,
SOME BANK ACCOUNTS AND FUNDS THAT HAD TO DO WITH MR. SPANIER.
AND THE WAY THE VERDICT FORM AT LEAST READS ON ITS FACE IS THAT
10
THERE IS AN EXPLICIT FINDING OF NEXUS, YOU KNOW, THE REQUISITE
11
NEXUS BY A PREPONDERANCE OF THE EVIDENCE BETWEEN THE CONVICTION
12
THAT MR. MC CLAIN SUFFERED AND THIS PROPERTY.
13
THING IF IT IS SIMPLY MR. MC CLAIN DISAVOWING ANY CLAIM OR -THE COURT:
14
NO.
AND IT IS ONE
I DON'T THINK HE WAS DISAVOWING ANY
15
CLAIM.
16
NEXUS BETWEEN THE CAUSES OF ACTION OR THE CLAIMS THAT
17
MR MC CLAIN WAS CONVICTED OF AND THE PROPERTY.
18
19
I THINK THE POINT WAS THAT THE JURY FOUND THERE WAS A
SO AM I NOT RIGHT, MR. WHEAT?

MR. WHEAT:
YEAH, THAT'S CORRECT.
THE PURPOSE OF THE
20
HEARING WAS TO ESTABLISH A NEXUS BETWEEN THE CRIMINAL ACTIVITY
21
AND THOSE FUNDS.
22
A MAJORITY OF THE PEOPLE WHO OWNED THAT PROPERTY WERE NOT
23
PRESENT IN COURT.
24
MR. FERONE (PHONETIC) WAS NOT HERE.
25
NONE OF THE PEOPLE -- I SHOULDN'T SAY "NONE."
MR. MICELI'S ESTATE WAS NOT HERE.
THERE WERE OTHERS WHO WERE NOT HERE, ALONG WITH
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MR. SPANIER.
ESTABLISH THAT NEXUS.
THIS.
COURT WILL MAKE THAT DECISION WHETHER OR NOT THAT CLAIM IS
VALID OR NOT.
6
7
8
9
SO THAT IS HOW THE FORFEITURE LOSS IS SET UP TO

MR. SCOTT'S CLIENT IS NOT PREJUDICED BY
HE'S JUST FILED A CLAIM NOW WITH THE COURT, AND THE
THE COURT:
THAT'S THE WAY I UNDERSTOOD IT,
MR. SCOTT.
MR. SCOTT:
THE CONCERN, YOUR HONOR, IS IT IS A
FACTUAL QUESTION WHETHER THERE IS A NEXUS BETWEEN THE OFFENSE
10
AND THIS PROPERTY.
11
MR. SPANIER'S PROPERTY.
12
CONFRONTATION CLAUSE, UNDER DUE PROCESS, THE PERSON WHO OWNS
13
THE PROPERTY OUGHT TO BE ABLE TO WEIGH IN TO TRY TO PERSUADE
14
THE JURY, TO BE HEARD IN A FORUM, AS TO WHETHER OR NOT THAT
15
NEXUS EXISTS, IF THAT NEXUS IS TO HAVE ANY APPLICATION AGAINST
16
MR. SPANIER.
17
THE COURT:
AND THERE IS NO REAL DISPUTE THAT IT WAS

AND SO IT WOULD SEEM THAT UNDER THE
LET ME SUGGEST THE FOLLOWING:
NO. 1,
18
THIS DOESN'T COME AS A SURPRISE TO MR. SPANIER OR TO YOU THAT
19
THAT PROCEEDING WAS GOING TO BE HELD.
20
21
22
MR. SCOTT:
WELL -- I DON'T WANT TO INTERRUPT.
I'LL
FINISH AT THE END.

THE COURT:
NO. 2, I DON'T HAVE ANY AUTHORITY TO
23
SUPPORT WHAT YOU'RE SAYING.
AND I SUSPECT THAT AGAIN, THIS IS
24
ANOTHER ONE OF THOSE ISSUES THAT COULD HAVE EASILY BEEN
25
ADDRESSED EARLY ON, SO THAT I WOULDN'T AGAIN HAVE TO SHOOT FROM
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THE HIP ON THE SUBJECT.
AND CAUSES OF ACTION FOR -- OR COUNTS FOR FORFEITURE.
PROPERTY WAS SET FORTH IN THE INDICTMENT; IT WAS SET FORTH IN
THE BILL OF PARTICULARS.
IT.
NOTHING TO EXCLUDE YOU FROM BEING PRESENT, I SUPPOSE.
WANTED TO, WE COULD HAVE ADDRESSED THAT ISSUE AT THE TIME.
8
9
10
EVERYBODY KNEW THAT THERE WERE CLAIMS
YOU HAD A COPY OF IT.
YOU WERE HERE THROUGHOUT THE WHOLE TRIAL.
THE
YOU KNEW ABOUT

THERE WAS
IF YOU'D
ANYWAY, I'M NOT GOING TO DEAL WITH THAT ISSUE TODAY.
HAVE NOTHING IN WRITING BEFORE ME ON THE SUBJECT, AND I HAVE

NO -- AND THERE IS NOTHING FOR ME TO DECIDE TODAY.
11
MR. SCOTT:
I UNDERSTAND.
I DO HAVE --
12
THE COURT:
LET'S GET TO ISSUE NO. 1.
13
MR. SCOTT:
YOUR HONOR, I UNDERSTAND WHAT THE COURT
14
IS SAYING.
15
WHOLE PREMISE OF BIFURCATING THE PROCEEDINGS WAS THAT IT WAS
16
NOT APPROPRIATE TO TAKE UP THIS ISSUE OF FORFEITURE UNTIL AND
17
UNLESS THERE IS A GUILTY VERDICT.
18
PROCEEDING WHERE THE PARTIES CAN BE HEARD.
19
SURPRISED, AND I WAS NOT APPRISED THAT THE GOVERNMENT WAS
20
TRYING TO ESTABLISH THAT NEXUS TO THIS PROPERTY.
21
SERVED WITH PAPERWORK SUGGESTING THAT THAT PROPERTY WOULD BE AT
22
ISSUE.
23
24
25
BUT I DO HAVE TO SAY, THIS WAS A SURPRISE.
THE COURT:
AND THEN THERE IS A SEPARATE

AND I, FOR ONE, WAS
I WASN'T
IF
MR. SPANIER HAD NOT BEEN A DEFENDANT IN THIS CASE -MR. SCOTT:
UH-HUH.
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THE COURT:
-- ARE YOU SAYING THAT SOMEHOW THE
GOVERNMENT WOULD BE REQUIRED TO -- IN A CRIMINAL FORFEITURE
PROCEEDING, TO CAUSE ALL THE PARTIES WHO MIGHT OTHERWISE HAVE A
CLAIM TO THE PROPERTY TO BE PRESENT AT THE TRIAL, AND THAT THEY
WOULD HAVE AN OPPORTUNITY TO BE INVOLVED IN THE TRIAL OF THE
CASE?
MR. SCOTT:
7
8
WELL, BY DEFINITION, IF IT'S PROCEEDING
CRIMINALLY, IT'S ATTACHED TO AN INDICTMENT.
THE COURT:
OKAY.
10
MR. SCOTT:
SO BEING THE DEFENDANT IN THE INDICTMENT,
11
THEN, ABSOLUTELY, YOU HAVE CAUSE TO BE PART OF THAT.
12
THE COURT:
NO --
13
MR. SCOTT:
NOW IF YOU'RE A THIRD PARTY, WHICH I
14
THINK IS CLOSER TO THE COURT'S HYPOTHETICAL, IF YOU'RE A THIRD
15
PARTY WITH AN INTEREST IN THE PROPERTY, YES, YOU'RE STILL
16
ENTITLED TO NOTICE.
17
THAT MR. SPANIER'S PROPERTY WAS GOING TO BE AT ISSUE AT THIS
18
PROCEEDING THAT HAPPENED AFTER HE WAS ACQUITED OF SEVEN OR SIX
19
COUNTS AND HUNG ON THE REST.
20
THAT I WASN'T GIVEN NOTICE THAT THAT PROPERTY WOULD BE AT
21
ISSUE.
22
SO THAT'S MY OBJECTION TO THE VERDICT THAT WAS RENDERED ON
23
THOSE COUNTS, BOTH UNDER CONFRONTATION CLAUSE AND UNDER THE DUE
24
PROCESS.
25
AND MY POINT IS, I DID NOT RECEIVE NOTICE
SO THAT'S MY SPECIFIC CONCERN IS
AND THIS OCCURRED IN ABSENTIA, VIS-A-VIS, MR. SPANIER.
THE COURT:
OKAY.
YOU'VE MADE YOUR RECORD.
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ALL RIGHT, LET'S GET BACK TO ISSUE NO. 1.
MY RECOLLECTION
IS THAT THE JURY INDICATED THAT ON AVERAGE, THEY WERE LEANING
NINE-THREE FOR CONVICTION ON THE COUNTS THAT THEY DID NOT
ACQUIT MR. SPANIER.
5
6
DOES THAT MEAN, MR. WHEAT, THAT THE GOVERNMENT WILL BE

RETRYING THIS CASE?
MR. WHEAT:
ABSOLUTELY.
THE COURT:
ALL RIGHT.
TRIAL DATE ON THIS CASE.
SO THEN WE NEED TO SET A
AND I SEEM TO RECALL, IF MY MEMORY
10
SERVES ME RIGHT, THAT WE WERE TALKING ABOUT SOMETIME IN
11
SEPTEMBER, BUT I DON'T KNOW -- AM I NOT -- NO?

MR. WHEAT:
12
13
NO.
I THINK WITH THE SCHEDULES, IT WAS
LATE OCTOBER, EARLY NOVEMBER, IS WHERE, I THINK, WE LEFT IT.
14
THE COURT:
OKAY.
15
MR. SCOTT:
AND THOSE DATES REMAIN FINE WITH ME, YOUR
17
THE COURT:
OKAY, LET'S DO THE FIRST WEEK OF OCTOBER.
18
MR. SCOTT:
I AM UNAVAILABLE UP UNTIL FRIDAY,
16
HONOR.
19
OCTOBER 4TH.
20
ELSE ASIDE, AND I'M WILLING TO RETRY THIS ANY TIME THE COURT
21
WANTS AFTER OCTOBER 4TH.
22
BUT ANY TIME AFTER THAT, I WILL SWEEP EVERYTHING
THE COURT:
CAN WE ANTICIPATE -- WELL, FIRST OF ALL,
23
LET ME ASK THIS:
MR. WHEAT, DOES THE GOVERNMENT REALLY INTEND
24
TO TRY ALL OF THE COUNTS?
25
JUDGE TURRENTINE ONCE SAYING, PICK YOUR THREE BEST AND TRY YOUR
I MEAN, IT IS REALLY -- I REMEMBER
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THREE BEST.
BECAUSE IF YOU CAN'T GET A CONVICTION ON THE THREE
BEST, YOU'RE NOT GOING TO GET A CONVICTION ON THE REST.
I'M NOT SUGGESTING THAT YOU TRY JUST THREE, BUT IT
CERTAINLY SEEMS TO ME THAT IF NOTHING ELSE, IT CONFUSES THE
JURY TO TRY ALL OF THESE COUNTS, AND IT TAKES UP AN INORDINATE
AMOUNT OF TIME.
THESE COUNTS THAT THE JURY COULD NOT REACH A VERDICT ON?
8
9
SO MY QUESTION IS, ARE YOU GOING TO TRY ALL OF
MR. WHEAT:
JUDGE, HERE IS HOW IT COMES DOWN.
WE'RE
NOT GOING TO FORSAKE THE CONSPIRACY COUNT.
10
THE COURT:
OKAY.
THAT MAKES SENSE.
11
MR. WHEAT:
AND THAT CONSPIRACY COUNT ENCOMPASSES ALL
12
THE OTHER COUNTS.
13
THEY DEAL WITH SPECIFIC WIRING, AND SPECIFIC MAILINGS, AND
14
SPECIFIC STOCK TRANSACTIONS, WHICH ARE ENCOMPASSED WITHIN THAT
15
CONSPIRACY COUNT.
16
THE EVIDENCE BY GETTING RID OF OTHER COUNTS.
17
CERTAINLY LOOK AT THE INDICTMENT --
18
SO THE FACT THAT THERE ARE OTHER COUNTS,
SO IT DOESN'T REALLY ADD ANY SHORTNESS TO
THE COURT:
SO WE'LL
PLEASE
19
UNDERSTAND, I'M NOT BEING CRITICAL.
I'M TRYING TO EXPLORE --
20
AND IT MAY BE THAT MY THINKING IS WRONG ON THIS.
21
A CONSPIRACY COUNT.
22
EVIDENCE OF THE CONSPIRACY?
23
AREN'T THESE BASICALLY EVIDENCE OF THE MONEY LAUNDERING?
24
HAVE A WIRE FRAUD COUNT, AND YOU HAVE -- BASICALLY THESE ARE
25
THE OVERT ACTS THAT TAKE PLACE IN A WIRE -- I MEAN, SO I GUESS
BUT YOU HAVE
AREN'T ALL OF THESE OTHER THINGS BASICALLY

YOU HAVE A MONEY LAUNDERING COUNT.
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WHAT I'M GETTING AT IS, ARE THESE REALLY SEPARATE COUNTS?

MR. WHEAT:
THEY ARE SEPARATE COUNTS BECAUSE THEY
CARRY SEPARATE PUNISHMENTS.
FIVE-YEAR CAP.
THE COURT:
THE CONSPIRACY ONLY HAS A
I UNDERSTAND.
I MISSPOKE.
SO YOU HAVE
THE CONSPIRACY COUNT, THE WIRE FRAUD COUNT, THE MAIL FRAUD
COUNT, THE MONEY LAUNDERING COUNT.
COUNTS.
COUNTS, RATHER THAN BEING SEPARATE COUNTS.
10
11
12
SO YOU BASICALLY HAVE FOUR
AND EVERYTHING ELSE SEEMS TO BE EVIDENCE OF THE FOUR

AM I MISSING
SOMETHING?
MR. WHEAT:
YOU ARE.
THEY ARE ALL SEPARATE
TRANSACTIONS.
13
THE COURT:
OKAY.
14
MR. WHEAT:
LOOK, WE'RE CERTAINLY GOING TO LOOK AT
15
THE INDICTMENT AND SEE IF THERE AREN'T WAYS THAT WE CAN DISTILL
16
IT SOME, IF NEED BE, AND LOOK AT THAT BEFORE THE TRIAL DATE.
17
THE COURT:
THE REASON WHY I'M ASKING THE QUESTION IS
18
NOT BECAUSE I'M TRYING TO WASTE ANYBODY'S TIME, BUT IT SORT OF
19
SEEMS TO ME THAT IT DOVETAILS INTO THE DISCUSSION OF THE TRIAL.
20
BECAUSE, OBVIOUSLY, THE LENGTH OF THE TRIAL IS AFFECTED BY THE
21
NUMBER OF COUNTS AND THE EVIDENCE THAT IS REQUIRED TO PROVE UP
22
THOSE COUNTS AND THE AMOUNT OF TIME IT TAKES FOR THE JURY TO
23
DELIBERATE ON THOSE COUNTS.
24
25
MR. WHEAT:
EACH COUNT ADDS A DEGREE OF COMPLEXITY.
AND THERE ARE VARIOUS ISSUES THAT THE JURY HAS TO GRAPPLE WITH.
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AND WE'LL CERTAINLY ANALYZE THE EVIDENCE IN LIGHT OF THAT AND
SEE IF THERE ISN'T SOME WAY THAT WE CAN MAKE THE PROCESS A
LITTLE LESS PAINFUL.
THE COURT:
OKAY.
WHAT I'M GOING TO HAVE TO DO --
WE'RE GOING TO HAVE TO SET -- WE'RE GOING TO HAVE TO STOP IN A
MINUTE AND TAKE A BREAK.
TOLD YOU THAT I HAD SOMETHING GOING ON IN OCTOBER, AND I DON'T
KNOW IF -- I DON'T REMEMBER IF IT'S THE THIRD WEEK OR THE LAST
WEEK OF OCTOBER.
10
CONFERENCE IS?
12
JUST A MINUTE.
14
15
AND I DIDN'T LOOK TO SEE WHEN THAT WAS.
GLENN, HAVE I TOLD YOU, BY ANY CHANCE, WHEN THE MDL
11
13
I THINK I HAD FORGOTTEN THAT I HAD
NO?
OKAY.
SO WE'LL TAKE A LOOK AT THAT IN
LET'S TALK ABOUT ISSUE NO. 2.
TELL ME ABOUT ISSUE NO. 2,
MR. SCOTT.
MR. SCOTT:
YOUR HONOR, I CAN TELL YOU WHAT I KNOW
16
ABOUT JUROR -- ABOUT ISSUE NO. 2.
AND THIS IS SOMETHING THAT
17
IS DEEPLY CONCERNING AND TROUBLING TO THE DEFENSE.
18
COURT INDICATED, WE'VE COME TO UNDERSTAND, AND I THINK THE
19
COURT PUT THIS ON THE RECORD, ALTHOUGH I WASN'T HERE WHEN THE
20
JURY ULTIMATELY CAME BACK AFTER MR. MC CLAIN'S PROCEEDING.
AS THE
21
THERE WAS A SPLIT -- A SPLIT, A HUNG JURY, ON A NUMBER OF
22
THE COUNTS, AND THEN THERE WERE ACQUITTALS ON THE REMAINDER OF
23
THE COUNTS.
24
THE INFORMATION THAT I HAVE IS THAT THERE WAS A JUROR IN
25
THE -- IN THE MINORITY, ADMITTEDLY THE MINORITY, A NOT GUILTY
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KNOW SOMETIMES WHEN LAWYERS TRY CASES, THEIR OBJECT IS MORE TO
CREATE APPEALABLE ERROR THAN IT IS TO TRY A CASE.
3
4
SO LET'S SEE, LET ME READ TO YOU WHAT THE -- WHAT ONE OF

THE REPORTS SAYS, OKAY.
MR. SCOTT:
5
6
THIS IS WHAT THE COURT IS GOING TO
DISCLOSE TO ME ANYWAY?
THE COURT:
YEAH.
I'M MAKING YOU A COPY RIGHT NOW.
SOME JURY MEMBERS, REFERRED TO BRADDICK AS NAPRISKY'S, QUOTE,
"COURTROOM BOYFRIEND" WHILE THE TRIAL WAS IN SESSION.
BECAUSE
10
THEY NOTICED NAPRISKY LOOKING AT BRADDICK AND SMILING.
11
NAPRISKY SUSPECTED SHE WAS BEING INTERVIEWED BECAUSE ANOTHER
12
JURY MEMBER HAD ACCUSED HER OF FLIRTING WITH BRADDICK DURING
13
THE TRIAL.
14
SO, I MEAN, THIS IS THE JUROR TELLING THE FBI AGENT THAT.
15
NOW I SUPPOSE MAYBE THE FBI AGENT MADE ALL THIS UP, I DON'T
16
KNOW.
17
OF WORMS.
18
ACCORDING TO MS. NAPRISKY, WERE OBSERVING THIS BEHAVIOR, OKAY.
19
NOW, YOU KNOW, I DON'T KNOW WHAT TO SAY, BUT THAT CERTAINLY
20
SEEMS TO ME AS RATHER ODD.
21
THAT IS A WHOLE DIFFERENT ISSUE, A WHOLE DIFFERENT CAN

BUT IT APPEARS THAT THE JURORS, THE OTHER JURORS,
MR. SCOTT:
I THINK --
AND THAT IS THE MEAT OF IT?
THERE IS NO
22
ALLEGATIONS THAT MR. BRADDICK DID ANYTHING, OR THAT THERE IS
23
ANY CONTACT DURING THE TRIAL --
24
THE COURT:
YOU KNOW, I HONESTLY DON'T REMEMBER.
25
MR. SCOTT:
OBVIOUSLY, THIS ISN'T THE FORUM TO
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LITIGATE THE MERITS OF THIS, BUT IF THAT IS THE HEART OF THE
CONCERN THAT -- I FEEL COMFORTABLE GOING FORWARD WITH THIS
MOTION.
FBI AGENT AT MR. BRADDICK'S DOOR.
THAT DOESN'T SEEM TO RISE TO THE LEVEL OF HAVING AN
THE COURT:
5
6
I'D LEAVE IT AT THAT.
WELL, WHATEVER.
OKAY, GOOD.
SO I THINK WE NEED TO SET A TRIAL DATE.
ALL RIGHT.
AND I DISCOVERED
THAT I HAVE AN MDL CONFERENCE; IT IS THE WEEK OF THE 28TH AND
THE 30TH.
MR. SCOTT?
SO WHEN DID YOU SAY YOU WERE GOING TO BE BACK,
MR. SCOTT:
10
I'M AVAILABLE AGAIN -- ON OCTOBER 4TH, I
11
WILL BE BACK.
I THINK THAT IS A FRIDAY.
12
WEEK, THIS CASE IS THE FIRST PRIORITY.

THE COURT:
13
SO BEGINNING THE NEXT

I'LL MAKE ANY DAY --
OCTOBER 7TH WILL BE MOTIONS IN LIM.
14
TRIAL WILL START OCTOBER 8TH.
15
OKAY.
16
MAKE SURE THAT -- WE HAVE NOW TRIED THIS CASE ONCE.
17
SURE WE DON'T WAIT UNTIL THE TRIAL TO ADDRESS EVIDENTIARY
18
ISSUES THAT COULD BE ANTICIPATED WITH ANY REASONABLE DUE
19
DILIGENCE BEFORE WE GET TO THE TRIAL SO THAT WE CAN MINIMIZE
20
THE NUMBER OF BREAKS THAT WE HAVE TO TAKE AND TO HAVE THE JURY
21
SITTING AROUND WAITING FOR US, OKAY.
22
IT WILL START AT 9:30 A.M.,
PLEASE PLAN TO BE HERE OCTOBER 7TH, AT 2:00 P.M.
PLEASE
LET'S MAKE
I'D APPRECIATE IT.
LIKEWISE, I'D APPRECIATE THAT IF THERE ARE ANY OTHER JURY
23
INSTRUCTIONS THAT I HAVEN'T ALREADY SEEN THAT SOMEBODY WANTS TO
24
PROPOSE, PLEASE MAKE SURE THAT I GET THEM NO LATER THAN TWO
25
WEEKS BEFORE THE DATE OF THE TRIAL, OKAY.
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THANK YOU.
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1
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ALL RIGHT, GLENN, DO ME A FAVOR, PLEASE MAKE A COPY OF ALL

OF THIS FOR -- THERE YOU GO.
(RECESS AT 3:45 P.M.)
---000---
5
6
10
11
12
13
14
CONFERENCE.
15
DATED:
JUNE 27, 2013, AT SAN DIEGO, CALIFORNIA
16
17
18
_________________________________
19
20
21
22
23
24
25
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Exhibit 7
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1
2
3
4
5

6
PLAINTIFF,
7
V.
8
JEFFREY SPANIER,
9
10
DEFENDANT.
. . . . . . . . . . . . . . . .
.
.
.
.
.
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NO. 12-CR-0918
AUGUST 19, 2013
2:47 P.M.
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14

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APPEARANCES:
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FOR THE PLAINTIFF:

BY: JENNIFER GMITRO, ESQ.
FOR THE DEFENDANT:
LAW OFFICES OF TIMOTHY A. SCOTT

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COURT REPORTER:
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SAN DIEGO, CALIFORNIA, AUGUST 19, 2013, 2:47 P.M.
* * * *
THE CLERK:
3
4
13 ON CALENDAR, CASE NO. 12-CR-0918, USA
VS. JEFFREY SPANIER, STATUS HEARING.
THE COURT:
ALL RIGHT.
MR. SCOTT:
GOOD AFTERNOON, YOUR HONOR.
FOR MR. SPANIER.
HIS PRESENCE WAS WAIVED PREVIOUSLY.
MR. WHEAT:
TIM SCOTT,
MICHAEL WHEAT AND FAITH DEVINE AND
JENNIFER GMITRO, FOR THE UNITED STATES, YOUR HONOR.

THE COURT:
I THINK I SET THIS FOR STATUS TODAY; AM I
12
MR. SCOTT:
YES.
13
THE COURT:
THE REASON WHY I SET IT ON CALENDAR IS
10
11
RIGHT?
ON FRIDAY, YOUR HONOR.
14
BECAUSE I'M NOT SURE OCTOBER 8TH IS A GOOD DATE FOR US TO START
15
TRIAL, AND I WAS WONDERING IF WE MIGHT BE ABLE TO CHANGE THAT.
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17
GLENN, WHAT DAYS DID WE TALK ABOUT?

MDL CONFERENCE, RIGHT?
THE CLERK:
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THE 24TH I'M AT THE
THE WEEK OF OCTOBER 28TH, I THINK THAT IS
THE CONFERENCE.
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THE COURT:
THE WEEK OF THE 28TH?
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THE CLERK:
OCTOBER 28TH.
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THE COURT:
SO THEN THE WEEK BEFORE THAT WOULD BE
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THE CLERK:
OCTOBER 22ND?
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THE COURT:
EXCEPT FOR THIS CASE, I'M TRYING TO
23
OKAY.
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REMEMBER.
AROUND?
HOW LONG DID IT TAKE TO TRY IT THE FIRST TIME

WAS IT TEN DAYS?
MR. WHEAT:
ABOUT TEN DAYS.
THE COURT:
NOW, OBVIOUSLY, ONE DEFENDANT IS NO
LONGER IN THE CASE, SO I WONDER -MR. WHEAT:
6
7
THAN THAT.
IT WILL BE SHORTER.
10
I THINK IT WILL BE SHORTER.
MR. SCOTT:
I WOULDN'T ANTICIPATE IT BEING ANY LONGER
I AGREE.
EVEN WITH ADDITIONS,
I DON'T THINK IT WILL BE ANY
LONGER, AND I THINK IT'S LIKELY TO BE SHORTER.

THE COURT:
11
I THINK WE BETTER LEAVE IT ALONE.
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BECAUSE I DON'T THINK WE CAN DO IT THE FOLLOWING WEEK, AND
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AFTER THAT, I'M TOO BOOKED.
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OKAY, THANK YOU.
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BUT I DIDN'T THINK OCTOBER 8TH WAS GOING TO WORK.
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THINK ANY OTHER DATE IS GOING TO WORK UNLESS WE GET OUT INTO
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DECEMBER, AND THAT IS JUST TOO FAR OUT.
18
RIGHT?
SO MAYBE OCTOBER 8TH IT IS, RIGHT.
APPRECIATE IT.
SORRY I HAD YOU COME IN HERE,

BUT I DON'T
I CAN'T SEE THAT.
YOU DON'T CARE?
19
MR. SCOTT:
I DON'T.
20
THE COURT:
2017, WOULD THAT BE OKAY WITH YOU, RIGHT,
21
DECEMBER DOESN'T BOTHER ME.
MR. SCOTT?
22
MR. SCOTT:
THAT WOULDN'T BOTHER ME.
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THE COURT:
AND THE OTHER PROBLEM IS, I DON'T KNOW
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WHAT WITNESSES THE GOVERNMENT WILL BE BRINGING.
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WE HAD A WITNESS FROM --
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AS I RECALL,
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MR. WHEAT:
THE WITNESSES ARE FROM CHINA AND THE
NETHERLANDS.
SO I'D ANTICIPATE THOSE WITNESSES WILL BE COMING,
TOO.
WE'D LIKE TO KNOW BECAUSE WE'RE GOING TO SPEND SOME MONEY TO
BRING THEM HERE.
IF THE COURT AND COUNSEL ARE INCLINED TO CHANGE THE DATE,
THE COURT:
I KNOW.
MR. WHEAT:
SO --
THE COURT:
WHAT DO YOU THINK?
THAT'S RIGHT.
WHAT DO YOU THINK
ABOUT MOVING IT OUT INTO THE CHRISTMAS RECESS PERIOD, FIRST
10
WEEK OF DECEMBER OR SOMETHING ALONG THOSE LINES?
11
THINK?
NO?
MR. SCOTT:
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13
THE COURT:
MR. SCOTT:
20
I WAS SEEING SOME GRIMACING COMING FROM
ACTUALLY, I DON'T WANT TO OVERSTEP.
MR. WHEAT:
CAN WE HAVE A SECOND TO LOOK AT THE
THE COURT:
ONE OF THE REASONS WHY I WANTED TO
CALENDAR?
21
CONTINUE IT IS MY DAUGHTER IS EXPECTING A BABY AROUND THAT
22
PERIOD OF TIME.
23
BABY WITHOUT MY HELP SO --
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25
BUT
I HEARD IF IT'S GOOD FOR YOU --
18
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YOUR HONOR, I THINK WE WERE GETTING SOME
THE GOVERNMENT'S SIDE OF THE TABLE THERE.
16
17
THAT'S FINE.
CONDITIONAL ASSENT THERE.
14
15
ALL RIGHT, JUST LEAVE IT ALONE.
WHAT DO YOU
BUT SHE CAN -- I'M SURE SHE CAN DELIVER THE
MR. SCOTT:
FOR WHAT IT IS WORTH, YOUR HONOR,
ACTUALLY, THE COURT SET US, I THINK, ON A TUESDAY, AND THE
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COURT WAS KIND ENOUGH TO GET ME ON THE OTHER SIDE OF A
PRE-PLANNED VACATION.
ON A THURSDAY OR FRIDAY, AND THEN WE'D BE STARTING IMMEDIATELY.
SO I WOULDN'T MIND HAVING AN ACTUAL REAL VACATION, WHERE I FEEL
LIKE I'M ON VACATION, AS OPPOSED TO STARTING UP THE DAY I GET
BACK.
DON'T, EITHER.
IT'S ONE OF THOSE THINGS WHERE I'M BACK
SO IF THE GOVERNMENT DOESN'T OPPOSE IT, I CERTAINLY
MR. WHEAT:
YOU'RE LOOKING AT MAYBE, LIKE, THE 9TH OF
10
THE COURT:
SURE.
11
MR. SCOTT:
THAT WOULD BE FINE.
12
THE COURT:
WOULD THAT WORK?
13
THE CLERK:
EVEN DECEMBER 3RD, JUDGE?
14
MR. WHEAT:
WE CAN'T DO THE 3RD.
15
MR. SCOTT:
I HAVE NO PROBLEM WITH THE 9TH.
16
MR. WHEAT:
HERE IS THE PROBLEM WE HAVE WITH THE 3RD,
8
9
DECEMBER?
17
IS BECAUSE OF THANKSGIVING, AND THE ABILITY TO BOOK TRAVEL
18
DURING THAT WEEK, IT IS VERY DIFFICULT.
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THE COURT:
THAT IS FINE.
20
THE CLERK:
DECEMBER, 10TH, TUESDAY?
21
THE COURT:
DECEMBER 10TH FOR TRIAL OKAY?
22
MR. SCOTT:
YES.
23
THE COURT:
I GUESS WE HAVE ALL THE MOTIONS IN LIM.
24
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WE'RE READY TO GO TO TRIAL, RIGHT?

MR. SCOTT:
I THINK THERE WAS AN IN LIMINE DATE SET
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ALREADY THAT PRECEDED IT.
I ASSUME THAT WILL MOVE ALONG WITH
IT.
STARTING -- I THINK WE HAD AN OCTOBER 7TH IN LIMS.
WE HAD ONE FOR THIS OCTOBER -- FOR THE OCTOBER 8TH TRIAL
THE COURT:
YOU WANT ME TO MOVE THE IN-LIM DATE?
MR. SCOTT:
YES, PLEASE.
THE COURT:
OKAY.
THE CLERK:
THAT'S DECEMBER 2ND.
MR. SCOTT:
THAT WOULD BE FINE.
THE COURT:
THAT WILL WORK, DECEMBER 2ND FOR IN LIMS.
10
OKAY.
A COUPLE WEEKS BEFORE?
THANK YOU.
11
MR. SCOTT:
12
THE COURT:
AGAIN, I'M SORRY FOR THE INCONVENIENCE.
13
MR. SCOTT:
NOT AT ALL.
14
MR. WHEAT:
15
THE COURT:
YOU BET.
THANK YOU.
THANK YOU.
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(RECESS AT 2:52 P.M.)
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---000---
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CONFERENCE.
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DATED:
FEBRUARY 1, 2014, AT SAN DIEGO, CALIFORNIA
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_________________________________
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Exhibit 8
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1
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5

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PLAINTIFF,
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V.
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JEFFREY SPANIER,
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DEFENDANT.
. . . . . . . . . . . . . . . .
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NO. 12-CR-0918
DECEMBER 2, 2013
2:44 P.M.
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12
13
14

15
APPEARANCES:
16
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FOR THE PLAINTIFF:

FOR THE DEFENDANT:
LAW OFFICES OF TIMOTHY A. SCOTT

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24
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COURT REPORTER:

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SAN DIEGO, CALIFORNIA, DECEMBER 2, 2013, 2:44 P.M.
* * * *
THE CLERK:
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USA VS. JEFFREY T. SPANIER, MOTION IN LIMINE HEARING.

MR. SCOTT:
5
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FOR MR. SPANIER.
CUSTODY.
TIM SCOTT,
HE IS PRESENT BEFORE THE COURT, OUT OF
THE COURT:
MS. DEVINE:
10
SURE.
FAITH
DEVINE AND MICHAEL WHEAT, ON BEHALF OF THE UNITED STATES.

THE COURT:
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13
MAY HE BE SEATED, YOUR HONOR?
11
EIGHT ON CALENDAR, CASE NO. 12-CR-0918,
ALL RIGHT.
I BELIEVE THAT MR. SCOTT HAS
SEVERAL MOTIONS THAT WERE FILED.
14
MR. SCOTT, AS YOU PROBABLY KNOW, THE LOCAL RULES REQUIRE
15
THAT MOTIONS BE FILED NO LATER THAN 14 DAYS PRIOR TO THE DATE
16
THE MOTION IS SET FOR HEARING.
17
MR. SCOTT:
I THINK THEY WERE TWO DAYS LATE, YOUR
19
THE COURT:
WERE THEY?
20
MR. SCOTT:
YES.
21
THE COURT:
I THOUGHT ABOUT ORDERING THEM TO BE
18
YOUR MOTIONS WERE FILED LATE.
HONOR.
22
STRICKEN, BUT I'M NOT GOING TO DO THAT SINCE THE GOVERNMENT
23
APPARENTLY HAS HAD AN OPPORTUNITY TO RESPOND TO THEM.
24
JUST WANTED TO NOTE THAT FOR THE RECORD, ANYWAY.
25
SO TELL ME ABOUT YOUR MOTIONS.
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BUT I
I MEAN, I'VE READ THEM.
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UNDERSTAND WHAT YOU'RE ASKING FOR, BUT YOU PROBABLY SHOULD MAKE
A RECORD.
MR. SCOTT:
3
4
DOES THE COURT WANT ME TO ORALLY ARGUE
THEM ONE BY ONE, OR ANSWER ANY QUESTIONS THE COURT HAS?

THE COURT:
WHY DON'T YOU GO THROUGH THEM.
TIME.
DON'T YOU GO AHEAD AND --
8
9
WE HAVE
WE'RE RUNNING AHEAD OF SCHEDULE THIS AFTERNOON, SO WHY
MR. SCOTT:
OKAY.
AS TO COUNT 1, YOUR HONOR, I THINK
THE PARTIES HAVE SET FORTH THEIR RESPECTIVE POSITIONS FAIRLY
10
WELL IN THE BRIEFING.
11
MOTION, AND THIS IS A MOTION TO DISMISS COUNT 1 FOR DUPLICITY,
12
IS THAT IT APPEARS TO THE DEFENSE THAT WHAT THE GOVERNMENT HAS
13
DONE IN THEIR SUPERSEDING INDICTMENT IS TO TAKE THE INITIAL
14
ALLEGED CONSPIRACY, WHICH THE GOVERNMENT DESCRIBED AS A
15
CONSPIRACY BETWEEN MR. SPANIER AND ARGYLL, WHICH WAS RUN, THE
16
COURT WILL RECALL, BY MR. MICELI AND MR. MC CLAIN, AND THEN
17
SORT OF TACK ON, OR ADD ON TO THAT, WHAT APPEARS, EVEN IF ONE
18
ACCEPTS THE GOVERNMENT'S VIEW OF THE EVIDENCE, TO BE A SEPARATE
19
AGREEMENT, AGAIN, WITHOUT STIPULATING TO THE FACTS, JUST TAKING
20
THE GOVERNMENT'S ALLEGATIONS AT FACE VALUE BETWEEN MR. SPANIER
21
AND AN ENTIRELY DIFFERENT COMPANY CALLED AYUDA, RUN BY A PERSON
22
THE GOVERNMENT IS NOW CALLING AS A WITNESS NAMED MANNY BELLO.
23
THE COURT:
THE DEFENSE'S POSITION ON THE FIRST
MY
24
RECOLLECTION IS THAT THE GOVERNMENT IS ARGUING THAT THAT IS
25
SIMPLY PART OF THE MEANS AND MANNER, OR MANNER AND MEANS, BY
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WHICH MR. SPANIER CARRIED OUT THE OFFENSE, AS OPPOSED TO BEING
A SEPARATE CONSPIRACY OR A SEPARATE OFFENSE.
MR. SCOTT:
THAT WAS THE GOVERNMENT'S RESPONSE IN
THEIR PAPERS.
IT WILL DEVOLVE INTO JURY INSTRUCTIONS, WHERE --
6
7
8
9
PERHAPS IT WILL BE A QUESTION OF FACT; PERHAPS
THE COURT:
I WAS JUST GOING TO SAY, CAN THAT BE
RESOLVED BY WAY OF UNANIMITY INSTRUCTIONS TO THE JURY?

MR. SCOTT:
INSTRUCTION.
OR, PERHAPS, MULTIPLE CONSPIRACY
I'M SURE WE'LL BE REQUESTING ONE OF THOSE WHEN
10
THE TIME COMES.
11
POSITION; THEY'VE PUT FORTH THEIRS, AND PERHAPS THIS IS
12
SOMETHING THAT NEEDS TO BE RESOLVED WITH --
13
SO I'M MAKING MY RECORD.
THE COURT:
I'VE PUT FORTH MY
I'M ASKING THE QUESTIONS BECAUSE WHEN I
14
REVIEWED THE MOTIONS, ETC., I HAD THESE VARIOUS QUESTIONS THAT
15
CAME UP, POPPED INTO MY MIND.
16
MR. SCOTT:
SO, ANYWAY.
SO WITH THAT -- AND WHEN I SAY I THINK IT
17
MAY BE RESOLVED WITH INSTRUCTIONS AND SO FORTH, I DON'T MEAN TO
18
WITHDRAW THE MOTIONS OR SUGGEST THAT I'M NOT PRESSING THE
19
MOTIONS, BUT I'M HAPPY TO SUBMIT THE MOTIONS NOW AT THIS POINT
20
AND ACCEPT THE COURT'S RULING, WHATEVER THAT MIGHT BE.
21
22
23
24
25
THE COURT:
OKAY.
SO --
IS THAT THE ONLY MOTION -- THAT'S
NOT THE ONLY MOTION YOU HAVE?

MR. SCOTT:
NO.
I HAVE FOUR MORE, AND THE GOVERNMENT
HAS SOME AS WELL.

THE COURT:
WHY DON'T YOU GO THROUGH YOURS.
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MR. SCOTT:
ALL RIGHT.
THE SECOND ONE IS A MOTION
UNDER THE SPEEDY TRIAL ACT.
THE GOVERNMENT HAS RESPONDED THAT, ONE, THIS CASE HAS BEEN
DEEMED COMPLEX IN EARLIER PROCEEDINGS, AND THAT SHOULD TOLL
TIME; AND SECONDLY, THAT THE DEFENSE ACQUIESCED TO THE SETTING
OF THE TRIAL DATE.
ALSO SET OUT IN THE PLEADINGS.
THE COURT:
I SET FORTH MY ARGUMENT ON THAT.
AND I THINK THOSE RESPECTIVE POSITIONS ARE

SO I'D SUBMIT ON THAT.
I THOUGHT
YOUR MOTION -- BY THE WAY, THERE IS A SUPREME COURT CASE THAT I
10
WANTED TO READ BEFORE I GRANTED OR -- BEFORE I DECIDED THE
11
MOTION.
12
ME.
13
THE NINTH CIRCUIT HAS WEIGHED IN ON THIS AS WELL.
14
RECOLLECTION IS THAT WE SORT OF HAVE A HIERARCHY OF RULES AND
15
LAWS THAT WE FOLLOW, OKAY.
16
BUT LET ME ASK YOU SOMETHING.
THIS REALLY TROUBLES
LET'S ASSUME THAT I ACCEPT YOUR ARGUMENT, AND CERTAINLY,

MY
SO WE SORT OF HAVE -- ESSENTIALLY WE START OUT WITH, SAY,
17
OUR LOCAL RULES.
AND TO THE EXTENT OUR LOCAL RULES CONFLICT
18
WITH A STATE STATUTE, THE LOCAL RULE MUST YIELD TO THE STATE
19
STATUTE, RIGHT.
20
PRECEDENCE OVER THE LOCAL RULE, RIGHT.
IN OTHER WORDS, THE STATE STATUTE TAKES
21
MR. SCOTT:
THE FEDERAL STATUTE?
22
THE COURT:
YEAH, RIGHT.
THE FEDERAL STATUTE.
I'M SORRY, I SAID "STATE."
23
I MISSPOKE.
SO WE HAVE A FEDERAL STATUTE
24
ON A SUBJECT.
25
FEDERAL STATUTE SORT OF COVERS THE FIELD, IF YOU WILL, THAT THE
WE HAVE A LOCAL RULE.
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TO THE EXTENT THAT THE
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LOCAL RULE COVERS, THE LOCAL RULE HAS TO YIELD TO THE FEDERAL
STATUTE, RIGHT?
MR. SCOTT:
I THINK IT DEPENDS ON WHAT THE RULE IS,
IF IT'S SUBSTANTIVE, IF IT'S PROCEDURAL.
VERSUS CONFLICTING WITH IT.
ANSWER CATEGORICALLY.
WILLING TO LISTEN.
8
9
THE COURT:
THAT IS THE RULE.
IF IT CLARIFIES
I THINK THAT'S A TOUGH QUESTION TO
BUT IF THAT'S THE COURT'S VIEW, I'M
RIGHT.
YOU CAN LISTEN BECAUSE I THINK
GENERALLY WE CAN'T ADOPT A LOCAL RULE THAT
10
IS GOING TO OVERRIDE, IF YOU WILL, A FEDERAL STATUTE.
11
WE HAVE FEDERAL STATUTES, WHICH ARE ENACTED BY CONGRESS, RIGHT,
12
AND SIGNED BY THE PRESIDENT.
13
CALLED THE CONSTITUTION.
14
OVER-ARCHING FOUNDATION OF OUR WHOLE SYSTEM, WHETHER IT BE OUR
15
SYSTEM OF JUSTICE OR THE SYSTEM OF GOVERNMENT.
16
AND THEN
BUT THEN WE HAVE THIS THING
AND THE CONSTITUTION IS THE
TO THE EXTENT THAT A STATUTE OR A JUDICIAL RULE CONFLICTS
17
WITH THE CONSTITUTION, THE CONSTITUTION PREVAILS, RIGHT.
18
THE LAW OF THE LAND, RIGHT?
IT IS
19
MR. SCOTT:
THAT IS MY UNDERSTANDING.
20
THE COURT:
NOW LET ME ASK YOU THIS, BECAUSE THIS HAS
21
BEEN TROUBLING ME.
22
CREATED BY THE CONSTITUTION.
23
A DEFENDANT TO BE REPRESENTED BY COUNSEL.
24
CONSTITUTIONAL MANDATE ACCORDING TO THE SUPREME COURT, RIGHT?
25
MR. SCOTT:
WE HAVE ALL KINDS OF RIGHTS THAT ARE

FOR EXAMPLE, WE HAVE THE RIGHT OF
CORRECT.
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THAT IS A
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THE COURT:
A DEFENDANT CAN WAIVE THAT RIGHT, RIGHT?
MR. SCOTT:
IN A FARETTA HEARING, YES.
THE COURT:
SO EVEN THOUGH WE HAVE A CONSTITUTIONAL
RULE THAT SAYS THAT A DEFENDANT HAS A RIGHT TO COUNSEL, A
DEFENDANT CAN WAIVE THAT RIGHT.
PROVISION THAT SAYS THAT NO DEFENDANT MAY BE TRIED EXCEPT FOR
ON AN INDICTMENT, RIGHT, ISSUED BY A GRAND JURY, RIGHT?
THERE IS A CONSTITUTIONAL
MR. SCOTT:
THAT'S RIGHT.
THE COURT:
THAT CAN BE WAIVED, RIGHT?
10
MR. SCOTT:
THAT IS MY UNDERSTANDING, MANY TIMES.
11
THE COURT:
RIGHT.
THERE IS A PROVISION IN THE
12
CONSTITUTION OF THE UNITED STATES THAT SAYS THAT A DEFENDANT
13
HAS A RIGHT TO BE TRIED BY A JURY, RIGHT?
14
MR. SCOTT:
YES.
15
THE COURT:
A DEFENDANT CAN WAIVE THAT RIGHT,
17
MR. SCOTT:
YES.
18
THE COURT:
A DEFENDANT CAN SAY, LOOK, I WANT TO BE
16
CORRECT?
19
TRIED BY A JUDGE, OR I WANT TO BE TRIED BY -- WHAT IS IT, ON
20
STIPULATED FACTS.
21
MR. SCOTT:
I'VE SEEN IT DONE.
22
THE COURT:
IT HAPPENS ALL THE TIME, RIGHT?
23
MR. SCOTT:
I WOULDN'T DO IT, BUT I'VE SEEN IT DONE.
24
THE COURT:
WELL, YEAH.
25
AND SOMEHOW THE SUPREME
COURT AND THE NINTH CIRCUIT HAS SAID ALL THE TIME THAT
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DEFENDANTS CAN WAIVE THOSE RIGHTS PROVIDED FOR BY THE
CONSTITUTION, NOT BY STATUTORY PROVISION, RIGHT?
MR. SCOTT:
THAT IS MY UNDERSTANDING.
THE COURT:
SO EXPLAIN SOMETHING TO ME.
SEE, I'M NOT AS SMART AS MOST.
WAIVE RIGHTS THAT ARE GIVEN TO THE DEFENDANT BY THE UNITED
STATES CONSTITUTION, AND WE SEEM TO SAY THAT THAT IS OKAY, BUT
THEN WE HAVE THIS STATUTE THAT SAYS, YOU KNOW, THERE IS A
SPEEDY CLOCK STATUTE, AND SOMEHOW WE SAY THAT CANNOT BE WAIVED.
10
BECAUSE,
HOW IS IT THAT A DEFENDANT CAN
HOW DOES THAT HAPPEN?
11
MR. SCOTT:
THE COURT IS ASKING ME?
12
THE COURT:
YES.
13
MR. SCOTT:
IT IS A CURIOUS AREA OF THE LAW.
IT DOES
14
SEEM SOMEWHAT INCONGRUOUS BASED ON ALL THE THINGS THAT THE
15
COURT SAYS.
16
MY UNDERSTANDING, FOR WHAT IT'S WORTH, FOR WHATEVER IT'S
17
WORTH, IS THAT I THINK THAT THE NINTH CIRCUIT AND THE SUPREME
18
COURT HAVE DESCRIBED SPEEDY TRIAL RIGHTS AS NOT INURING JUST TO
19
THE BENEFIT OF THE DEFENDANT, BUT ALSO TO SOCIETY.
20
THE COURT:
BUT ISN'T THAT TRUE OF -- YOU KNOW, WHEN
21
WE SAY TO A DEFENDANT THAT YOU HAVE A RIGHT TO HAVE A LAWYER TO
22
REPRESENT YOU, ISN'T IT TRUE THAT THE REASON WHY WE HAVE THAT
23
RIGHT IS BECAUSE IT PRESERVES THE INTEGRITY OF OUR JUDICIAL
24
PROCEEDINGS AND IT PROMOTES RESPECT FOR THE LAW AND IT MAKES
25
SURE WE AREN'T RAILROADING PEOPLE?
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MR. SCOTT:
1
2
PERHAPS IN THE BROADER SENSE I THINK
THAT'S AN EXCELLENT ARGUMENT TO MAKE.

THE COURT:
AND THAT'S ALSO TRUE FOR A JURY TRIAL,
RIGHT?
WE SAY TO SOCIETY -- PART OF OUR WHOLE JURISPRUDENCE
FABRIC IS YOU HAVE A RIGHT TO BE TRIED BY A JURY OF YOUR PEERS,
THAT WAY WE KNOW THAT THERE IS RESPECT FOR THE CITIZENRY, FOR
HOW PEOPLE ARE TRIED, ETC., AND THAT CAN BE WAIVED.
MR. SCOTT:
IT IS A CURIOUS THING.
THE COURT:
YEAH, IT IS CURIOUS, ISN'T IT.
BECAUSE
10
AS I WAS LOOKING AT THIS, I WAS GOING, YOU KNOW, AS FAR -- I
11
ALWAYS THOUGHT THE ONLY THING THAT CANNOT BE WAIVED WAS
12
JURISDICTION, I THOUGHT.
13
HAVE -- I MEAN, YOU REMEMBER, DON'T YOU, YOU REMEMBER IN THIS
14
CASE THAT ONE TIME I HAD SET THE CASE FOR TRIAL, AND YOU AND
15
MR. ADAMS FORGOT TO TELL JUDGE BURNS ON ANOTHER CASE THAT YOU
16
HAD THAT I HAD SET THIS CASE FOR TRIAL.
17
GO TO TRIAL, AND YOU REMEMBER THAT.
18
TO TRIAL, AND YOU AND MR. ADAMS CAME IN HERE AND YOU BEGGED AND
19
YOU PLEADED AND YOU ASKED ME TO PUT OFF THE TRIAL IN THE CASE,
20
AND I DID.
21
BUT HERE, PARTICULARLY WHERE YOU
AND SO I WAS READY TO
AND I SAID, HEY, LET'S GO
AND THEN WE HAD THE TRIAL OF THIS CASE.
AND I ASKED FOR A
22
DATE AND, YOU KNOW, NOBODY OBJECTED TO THE OCTOBER DATE THAT I
23
HAD SET.
24
DAUGHTER IS EXPECTING A BABY ON THAT DAY.
25
ISSUE ABOUT WHETHER OR NOT WE COULD GO OUT ON THAT DATE, AND I
AND THEN I CAME IN AND I SAID, YOU KNOW, I THINK MY
134
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SAID, FINE, FINE, WE'LL DO IT ON OCTOBER 8TH.
I THINK, MR. SCOTT, WITH MUCH CREDIT TO YOU, I THINK YOU SAID,
NO, YOU KNOW WHAT, LET'S GO OFF INTO DECEMBER BECAUSE THAT WAY,
I'LL REALLY GET THE VACATION THAT I WAS PLANNING ON TAKING.

MR. SCOTT:
5
6
THAT IS ABSOLUTELY RIGHT.
AND AS I RECALL,
I WAS AS HAPPY
AS ANYBODY.
THE COURT:
SO IT STRIKES ME AS -- IF WE TALK ABOUT
INTEGRITY OF THE SYSTEM AND SOCIETAL VALUES AND ALL OF THAT, IT
STRIKES ME WHAT WE'VE DONE IS CREATE THIS SORT OF GAMESMANSHIP.
10
IF YOU'RE SITTING IN A DISTRICT WHERE THEY HAVE ONE CRIMINAL
11
CASE A MONTH, MAYBE -- I DON'T KNOW, MAYBE THIS MAKES SENSE,
12
BUT IN A -- PARTICULARLY IN A BORDER DISTRICT LIKE OURS, I
13
THINK WE'RE THREE OR FOUR IN THE NATION AS FAR AS CASE LOAD IS
14
CONCERNED.
15
AND IF THE LAWYER -- THE REALITY IS, IT WORKS TO YOUR BENEFIT,
16
AS WELL AS TO EVERYBODY ELSE, TO TRY TO RESOLVE THESE DISPUTES,
17
OR TO WORK THEM OUT IN A WAY THAT YOU CAN PREPARE, SO YOU CAN
18
GO ON YOUR VACATION WITHOUT HAVING TO COME BACK -- AND
19
DEPRIVING MR. SPANIER OF THE COMPETENT REPRESENTATION THAT HE
20
DESERVES.
21
IF WE REALLY TRIED TO TAKE OUT EVERY CASE WE HAVE,
ANYWAY, I WAS JUST REALLY SURPRISED WHEN I -- LIKE I SAID,
22
I HAVEN'T READ THE SUPREME COURT CASE THAT I WANTED TO READ,
23
BUT I HAVE A PRETTY GOOD IDEA OF WHAT IT SAYS.
24
WAS ONE DISSENT.
25
MORE ON THE QUESTION OF WHETHER OR NOT THE LEGISLATIVE DISTRICT
I THINK THERE
I THINK IT WAS BY JUSTICE SCALIA, AND IT WAS
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1
2
SHOULD BE LOOKED AT AND SO ON.

BUT I'M JUST FLABBERGASTED THAT THE SOCIETAL VALUE OF
TRYING A CASE WITH THIS ARBITRARY -- THERE ARE SO MANY -- SAY,
FOR EXAMPLE, AN EDPA CLAIM, BY GOLLY, CONGRESS CAME OUT AND
SAID, YOU KNOW, THERE IS A STATUTE, THERE IS A STATUTE OF
LIMITATIONS, AND YOU MUST FILE YOUR PETITION FOR HABEAS CORPUS
WITHIN ONE YEAR.
THIS THING CALLED EQUITABLE TOLLING.
AND THEN LO AND BEHOLD, JUDICIALLY, WE CREATE
SO, APPARENTLY, THERE IS NO SOCIETAL VALUE TO MAKING SURE
10
THAT THE HABEAS CORPUS PETITIONS ARE FILED WITHIN THE STATUTORY
11
TIME PROVIDED BY CONGRESS, BUT THERE IS A SOCIETAL VALUE TO
12
TRYING DEFENDANTS WITHIN 70 DAYS, PARTICULARLY IF THEY'VE
13
ACQUIESCED AND KIND OF -- I DON'T WANT TO -- TO USE A WORD THAT
14
I HEARD ONCE BEFORE, IN ESSENCE, WHAT HAPPENS IS THE DEFENSE
15
GOADS THE COURT AND THE OTHER SIDE INTO AGREEING TO PUT THINGS
16
OFF, AND THEN COMES IN AND SAYS, OH, NEVER MIND.
17
APPARENTLY, THE NINTH CIRCUIT AND THE SUPREME COURT GO ALONG
18
WITH THAT.
I DON'T KNOW.
MR. SCOTT:
19
AND,
WELL, YOUR HONOR, I SHARE THE COURT'S
20
VIEW.
THIS IS A UNIQUE AREA OF CASE LAW.
AND IT STRUCK ME AS
21
I WAS READING IN PARTICULAR THAT ALVAREZ-PEREZ CASE.
22
IT WAS BRIDGET KENNEDY OUT OF THIS DISTRICT ENDED UP TAKING IT
23
UP ON APPEAL.
I THINK
24
THE COURT:
IS THAT JUDGE HUFF'S CASE?
25
MR. SCOTT:
I THINK THAT CASE WAS IN FRONT OF JUDGE
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ANELLO IF I'M NOT MISTAKEN.
2
3
THE COURT:
YEAH, I KNOW WHICH ONE YOU'RE TALKING
MR. SCOTT:
SO NOT ONLY IS IT A THING THAT THE
ABOUT.
4
5
DEFENSE CAN'T AFFIRMATIVELY WEIGH, BUT THERE IS ALSO SOME
FAIRLY STRONG LANGUAGE IN THERE THAT INTIMATED, AND I THINK
MORE THAN INTIMATED, THAT A DEFENSE ATTORNEY MIGHT BE DEEMED
INEFFECTIVE IN A 2255 SETTING IF THEY DON'T WAIVE THE MOTION
ONCE THEY LEARN THERE IS A POTENTIALLY MERITORIOUS MOTION
10
THERE.
AND THAT'S KIND OF THE POSITION WE'RE IN, AND THAT'S
11
THE REASON WHY I HAVE TO MAKE THE MOTION I MADE.

THE COURT:
12
I'M NOT FAULTING YOU.
13
TENURE.
14
LAWYER, AND YOU'RE DOING WHAT YOU'RE SUPPOSED TO BE DOING, I
15
SUPPOSE.
16
THIS IDEA THAT THIS IS LIKE THE ELEVENTH COMMANDMENT, IF YOU
17
WILL, WHEN MOSES WALKED DOWN THE HILL WITH THE CLAY TABLETS.
18
YOU KNOW, THERE WAS THE ELEVENTH COMMANDMENT.
19
COMMANDMENT WAS, THOU SHALL TRY A CASE WITHIN 70 DAYS AND THERE
20
SHALL BE NO WAIVER.
21
22
23
I DON'T HAVE TO FLATTER ANYONE.
I HAVE LIFETIME
BUT YOU'RE A GOOD
BUT TO THE EXTENT THAT SOMEHOW WE'VE COME UP WITH
THE ELEVENTH
I THINK IT IS A LITTLE ODD.
BUT ANYWAY, LET ME HEAR FROM THE GOVERNMENT.
BECAUSE I
THINK THIS IS REALLY AN INTERESTING ISSUE.

MS. DEVINE, I THINK MR. SCOTT MAKES A REALLY GOOD POINT.
24
I MEAN, I COULD NOT FIND A CASE THAT SAYS -- AND MAYBE THERE IS
25
ONE THAT SAYS, ONCE I'VE DECLARED A CASE COMPLEX AFTER THE CASE
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IS TRIED, THE FACT THAT THE CASE IS COMPLEX SORT OF EVAPORATES.
MS. DEVINE:
THERE IS A CASE THAT SAYS THAT.
VERY CLEAR.
COMPLEX, THAT THAT TOLLS.
CASE IS COMPLEX.
MULTIPLE DOCUMENTS.
8
9
WELL, I GUESS THAT'S -- I DON'T BELIEVE

BUT I THINK THE STATUTE IS
THAT ONCE THERE IS A DESIGNATION THAT THE CASE IS

AND THE REASON WHY IS BECAUSE THE
THERE ARE MULTIPLE WITNESSES.
THERE ARE
SO IT'S PRESUMED THAT YOU DON'T JUST RETRY THE CASE WITHIN
THE 70 DAYS.
BECAUSE YOU HAVE WITNESSES THAT COME FROM
10
OVERSEAS.
11
THAT ARE FLYING IN.
12
TRIAL SO IT'S CONVENIENT FOR EVERYBODY.
13
WITH MULTIPLE WITNESSES THAT LIVE ALL OVER THE WORLD ARE
14
DESIGNATED AS COMPLEX.
15
EVERYBODY KNOWS THAT.
YOU HAVE MULTIPLE WITNESSES
SO YOU HAVE TO BE ABLE TO SCHEDULE THE

AND THAT'S WHY CASES
AND SO THAT'S OUR POSITION, IS THAT ONCE THERE IS A
16
COMPLEX CASE DESIGNATION, THE STATUTE IS CLEAR THAT THE TIME IS
17
TOLLED.
18
OR THE PROVISION UNDER 3161 THAT TALKS ABOUT RETRIAL.
19
AND IT'S EVEN UNDER THE STATUTE WHICH TALKS ABOUT --
AND THERE IS A PROVISION IN THERE THAT SAYS THAT THE TIME
20
PERIOD, THE DELAY -- OR THE PERIODS OF DELAY IN 3161(H) ARE
21
EXCLUDED IN COMPUTING THE TIME.
22
PUT THAT IN THE PROVISION THAT TALKS ABOUT RETRIAL IF THEY
23
DIDN'T INTEND THAT THE -- ALL OF THE REASONS UNDER 3161(H)
24
WOULD NOT ALSO BE INCLUDED AS PART OF A RETRIAL.
25
THE COURT:
SO I MEAN, THEY WOULDN'T HAVE
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BECAUSE THIS
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1
2
KIND OF DOVETAILS INTO THE MOTION ON COUNT 1.

I'M SOMEWHAT TROUBLED BY THE POSSIBLE FUTURE EFFECTS OF
THE AMENDMENT TO ADD THIS OTHER FINANCIAL INSTITUTION.
THE NAME OF IT?
MR. SCOTT:
WHAT IS
I THINK THE COURT IS REFERRING TO WHAT IS
NOW A GOVERNMENT COOPERATING WITNESS, MANNY BELLO, B-E-L-L-O.
AND HIS COMPANY IS CALLED AYUDA, A-Y-U-D-A.
THE COURT:
RIGHT.
MR. SCOTT:
AND I THINK, FOR THE RECORD, THAT
10
MR. BELLO HAS AGREED TO COOPERATE WITH THE GOVERNMENT, AND I
11
THINK THAT THAT IMMUNITY WAS CONFERRED UPON HIM WITHIN THE PAST
12
MONTH OR SO UNLESS I'M MISTAKEN.
13
THE COURT:
NOW -- AND I ASSUME THE GOVERNMENT HAS
14
PROVIDED YOU WITH THE DISCOVERY IN CONNECTION WITH THE IMMUNITY
15
THAT WAS OFFERED, ETC.?
16
MR. SCOTT:
THEY HAVE PROVIDED ME WITH DISCOVERY
17
ALONG THOSE LINES.
AND I'M GOING TO WORK WITH THEM TO ENSURE
18
I'VE GOTTEN EVERYTHING I'M ENTITLED TO.
19
ME AN IMMUNITY LETTER.
20
FINGERTIPS, BUT I THINK THE IMMUNITY LETTER WAS DATED WITHIN
21
THE PAST MONTH OR SO.
BUT THEY HAVE PROVIDED
AND I DON'T HAVE THE DATE AT MY
MS. DEVINE CAN CORRECT ME IF I'M WRONG.
22
THE COURT:
I WAS KIND OF STAMMERING A LITTLE BIT
23
ABOUT WHAT I WAS ABOUT TO SAY.
24
WAY THAT IS UNDERSTANDABLE.
25
ADDING THIS ADDITIONAL ENTITY AND THIS ADDITIONAL WITNESS, WHO
I'M TRYING TO FRAME THIS IN A
BUT IT ALMOST SEEMS TO ME THAT BY
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NOW HAS DECIDED TO TESTIFY AGAINST MR. SPANIER, I JUST POSE
THIS AS A COMMENT, NOT NECESSARILY A POSITIVE STATEMENT, IF YOU
WILL, BUT IT WOULD SEEM TO ME THAT THAT IN AND OF ITSELF MIGHT
VERY WELL BRING ALONG WITH IT AN OBLIGATION BY THE GOVERNMENT
TO PRODUCE DISCOVERY TO MR. SCOTT, AND, FURTHERMORE, AN
OBLIGATION ON THE PART OF MR. SCOTT TO MAKE SURE THAT HE HAS
NOT ONLY THE DISCOVERY NEEDED TO DEFEND AGAINST THOSE
ALLEGATIONS, BUT ALSO THAT HE'S HAD AN ADEQUATE OPPORTUNITY TO
INVESTIGATE IT.
10
AND, OF COURSE, THE REASON WHY I WAS KIND OF STAMMERING IS
11
BECAUSE, I'M ASSUMING THAT MR. SCOTT IS SAYING, I HAVE ALL THE
12
DISCOVERY I NEED TO DEFEND AGAINST ALL OF THOSE ALLEGATIONS.
13
BECAUSE, OTHERWISE, WHAT IT DOES IS, IT PUTS HIM IN THE
14
POSITION OF HAVING TO SAY, JUDGE, GUESS WHAT, THE GOVERNMENT
15
HAS AMENDED THEIR INDICTMENT, AND SO NOW I NEED DISCOVERY ON
16
THESE ALLEGATIONS, WHICH, OF COURSE, WOULD COMPLETELY GUT HIS
17
MOTION FOR -- HIS MOTION FOR DISMISSAL UNDER 3161(H), RIGHT.
18
SO MR. SCOTT IS PUT INTO AN INTERESTING POSITION.
IF HE
19
DOESN'T HAVE ALL OF THE DISCOVERY, AND IF HE HASN'T HAD AN
20
OPPORTUNITY TO COMPLETELY INVESTIGATE THE CLAIMS THAT ARE NOW
21
RAISED AS A RESULT OF THE SUPERSEDING INDICTMENT, HE'S POSSIBLY
22
JEOPARDIZING MR. SPANIER, POSSIBLY CREATING AN INEFFECTIVE
23
ASSISTANCE OF COUNSEL CLAIM, AND, OF COURSE, POSSIBLY AFFECTING
24
HIS -- YOU KNOW, AFFECTING HIM PERSONALLY.
25
THAT PLAYS.
SO I DON'T KNOW HOW
I DON'T KNOW HOW THAT WORKS OUT.
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WHEN I SAW IT, I THOUGHT, MY INITIAL REACTION WAS, OH, MY
1
2
GOSH, SO ON THE ONE HAND, WE'RE BEING ASKED TO SET TRIAL IN A
SPEEDY FASHION; ON THE OTHER HAND, IT SEEMS TO ME IF I WAS THE
DEFENDANT, I WOULD WANT TO BE ABLE TO MAKE SURE I WAS ABLE TO
ADEQUATELY AND COMPETENTLY DEFEND THOSE CLAIMS.

AND I THINK THAT KIND OF TIES INTO THE COMPLEXITY.
6
7
BECAUSE THE CASE WAS COMPLEX BEFORE, BUT NOW YOU'VE ADDED THIS
LITTLE -- I'LL CALL IT "LITTLE."
IS.
10
I DON'T KNOW HOW LITTLE IT
BUT YOU'VE ADDED THIS WRINKLE TO THE CASE, WHICH SEEMS TO
MAKE THE CASE EVEN MORE COMPLEX.

MS. DEVINE:
11
I DON'T KNOW.
ONCE AGAIN, YOUR HONOR, YOU HAVE
12
ARTICULATED, I THINK, THE POSITION VERY WELL, AND I DON'T NEED
13
TO REPEAT IT.
14
COMPLEX AND WHY THERE NEEDED TO BE THIS ADDITIONAL TIME.
15
COMMENT ABOUT, THE INTRODUCTION OF THIS NEW ENTITY IS REALLY --
16
IT'S NOT -- IT'S ACTUALLY TWO ENTITIES.
17
ENTITIES WAS AN ENTITY THAT MR. SPANIER CREATED WITH MR. BELLO,
18
AND IT USES THE AMERIFUND NAME.
19
THAT IS EXACTLY THE REASON WHY THE CASE IS

THE
AND ONE OF THE
THERE WAS MENTION OF THIS OTHER LENDER IN THE FIRST TRIAL.
20
SO IT'S NOT SOMETHING NEW, BUT IT'S JUST THAT THERE HAS BEEN
21
SOME ADDITIONAL DISCOVERY AS A RESULT OF THE OTHER WITNESS
22
AGREEING TO TESTIFY.
23
IMMUNITY OR ANY TYPE OF AGREEMENT IN PLACE FOR THIS WITNESS TO
24
TESTIFY.
25
BECAUSE BEFORE, WE DID NOT HAVE AN
NOW THAT HE HAS AGREED -- WHICH, MR. SCOTT IS CORRECT,
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THAT THIS HAPPENED WITHIN THE LAST 30 DAYS.
HAPPENED, WE DID NOTIFY HIM.
3
4
THE COURT:
I SEE.
AS SOON AS IT
I TOLD HIM -SO THAT IS WHAT CAUSED YOUR
DELAY, WAS GETTING THE IMMUNITY FROM --
MS. DEVINE:
THE COURT:
EXACTLY.
I WAS WONDERING ABOUT THAT.
I WAS
WONDERING, WHY IN THE WORLD DID THEY WAIT ALL THIS TIME.
COULD HAVE GOTTEN THIS RESOLVED A LOT SOONER.
LET ME ASK A QUESTION.
WE
OKAY.
WHY COULDN'T YOU SPLIT THE COUNTS
10
TO ALLEGE -- BECAUSE MR. SCOTT IS ALLEGING THIS DUPLICITY.
11
COULDN'T YOU SPLIT THAT COUNT INTO TWO COUNTS, AND IF YOU DID
12
THAT -- LET ME JUST -- I'M KIND OF THINKING OUT LOUD HERE.
13
IF YOU DID THAT, THEN YOU WOULD HAVE A NEW COUNT, RIGHT?
14
THE NEW COUNT IS BASED ON NEW FACTS, AND, THEREFORE, DOESN'T
15
THE SPEEDY TRIAL CLOCK BEGIN TO RUN AT LEAST AS TO THAT COUNT?
16
SO EVEN IF, IN FACT, I WERE TO SAY, I'M GOING TO DENY
17
MR. SCOTT'S MOTION, UNDER -- TO DISMISS ON THE SPEEDY TRIAL
18
CLOCK GROUNDS, BUT IF YOU SPLIT THE COUNTS, IF I'M WRONG AS TO
19
PART OF THE COUNTS, I PROBABLY WOULD BE RIGHT AS TO PART OF THE
20
COUNTS AS WELL, RIGHT?
21
INDIVIDUALS, NEW POSSIBLE WITNESSES, AND THERE WOULD BE A NEW
22
SPEEDY TRIAL CLOCK STARTING FROM THERE, WOULDN'T THERE?
23
MS. DEVINE:
WHY
BUT
AND
BECAUSE IT ALLEGES NEW FACTS, NEW
I UNDERSTAND YOUR POSITION.
I JUST
24
DON'T BELIEVE THERE ARE TWO CONSPIRACIES HERE.
25
IS, ONE PERSON THAT IS REPRESENTING TO THE PUBLIC THAT HE IS
142
WHAT WE HAVE
Exhibit 9
14-50306 Docket
General Docket
United States Court of Appeals for the Ninth Circuit
Court of Appeals Docket #: 14-50306
USA v. Jeffrey Spanier
Appeal From: U.S. District Court for Southern California, San Diego
Fee Status: IFP
Docketed: 06/27/2014
Termed: 01/21/2016
Case Type Information:

1) criminal
2) Direct Criminal
3) null
Originating Court Information:
District: 0974-3 : 3:12-cr-00918-BEN-3
Court Reporter: Deborah M. O'Connell, Official Court Reporter
Trial Judge: Roger T. Benitez, District Judge
Date Filed: 03/09/2012
Date Order/Judgment:
Date Order/Judgment EOD:
06/26/2014
06/27/2014
Date NOA Filed:

06/23/2014
Date Rec'd COA:

06/23/2014
Prior Cases:
None
Current Cases:
None
UNITED STATES OF AMERICA

Plaintiff - Appellee,
Jennifer L. Gmitro, Esquire, Attorney

Direct: 619-546-9692
[COR LD NTC Assist US Attorney]
US Department of Justice
Southern District of California
Room 6293
880 Front Street
San Diego, CA 92101
Joseph Orabona, Assistant U.S. Attorney
Direct: 619-546-7951
Office of the US Attorney
Room 6293
880 Front Street
San Diego, CA 92101
Michael G. Wheat, Assistant U.S. Attorney
Direct: 619-557-5408
Room 6293
880 Front Street
San Diego, CA 92101
Peter Ko, Assistant U.S. Attorney
Direct: 619-557-6618
[COR NTC Assist US Attorney]
Room 6293
880 Front Street
San Diego, CA 92101
v.
JEFFREY SPANIER
Defendant - Appellant,
Timothy Allen Scott, Attorney

Direct: 619-794-0451
[COR LD NTC CJA Appointment]
Law Offices of Timothy A. Scott
Suite 600
1350 Columbia Street
San Diego, CA 92101
Benjamin Lee Coleman
[COR NTC CJA Appointment]
https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom
4/25/2016
14-50306 Docket
COLEMAN & BALOGH LLP

1350 Columbia St.
San Diego, CA 92101
4/25/2016
14-50306 Docket

Plaintiff - Appellee,
v.
JEFFREY SPANIER,
Defendant - Appellant.
4/25/2016
14-50306 Docket
06/27/2014
1
12 pg, 217.91 KB
07/09/2014
07/11/2014
Criminal Justice Act electronic voucher created. (Counsel: Mr. Timothy Allen Scott for Jeffrey Spanier)
[9161952] (JN) [Entered: 07/09/2014 12:49 PM]
Filed (ECF) Appellant Jeffrey Spanier Urgent Motion to stay lower court action. Date of service:
07/11/2014. [9166310] (Scott, Timothy) [Entered: 07/11/2014 03:38 PM]
4
2 pg, 34.65 KB
08/22/2014
5
5 pg, 243.35 KB
09/10/2014
DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. Reporters Transcript required:

Yes. Sentence imposed: 120 Months. Transcript ordered by 07/14/2014. Transcript due 08/13/2014.
Appellant briefs and excerpts due by 09/22/2014 for Jeffrey Spanier. Appellee brief due 10/22/2014 for
United States of America. Appellant's optional reply brief is due 14 days after service of the answering
brief. [9149077] (SM) [Entered: 06/27/2014 03:08 PM]
283 pg, 2.68 MB
08/14/2014
6
2 pg, 13.62 KB
Filed clerk order (Deputy Clerk: SLL): A review of the record indicates that the district court hearing
originally scheduled for August 15, 2014 has been continued until October 15, 2014. Therefore,
appellants July 11, 2014 motion for stay of preliminary order of forfeiture no longer requires urgent
action. Therefore, the following briefing schedule shall apply to appellants July 11, 2014 motion:
appellees response is due August 25, 2014. Appellants optional reply is due within seven days after
service of the response. The briefing schedule established in the courts June 27, 2014 order remains in
effect for the appeal. [9205740] (AF) [Entered: 08/14/2014 03:26 PM]
Filed (ECF) Appellee USA response non-opposing motion (,motion to stay lower court action). Date of
service: 08/22/2014. [9215751] (Devine, Faith) [Entered: 08/22/2014 12:19 PM]
Filed (ECF) notice of appearance of Benjamin Lee Coleman for Appellant Jeffrey Spanier. Date of service:
09/10/2014. [9235727] (Coleman, Benjamin) [Entered: 09/10/2014 03:26 PM]
09/10/2014
Added attorney Benjamin Lee Coleman for Jeffrey Spanier, in case 14-50306. [9235776] (RR) [Entered:
09/10/2014 03:37 PM]
09/19/2014
Filed (ECF) Streamlined request for extension of time to file Opening Brief by Appellant Jeffrey Spanier.
New requested due date is 10/22/2014. [9246720] (Coleman, Benjamin) [Entered: 09/19/2014 02:10 PM]
09/19/2014
Streamlined request [8] by Appellant Jeffrey Spanier to extend time to file the brief is approved.
Amended briefing schedule: Appellant briefs and excerpts due by 10/22/2014 for Jeffrey Spanier.
Appellee brief due 11/21/2014 for United States of America. The optional reply brief is due 14 days
from the date of service of the answering brief. [9246765] (JN) [Entered: 09/19/2014 02:26 PM]
10
Submitted (ECF) Opening Brief and excerpts of record for review. Submitted by Appellant Jeffrey Spanier.
Date of service: 10/22/2014. [9287250] (Coleman, Benjamin) [Entered: 10/22/2014 05:46 PM]
10/22/2014
573 pg, 4.47 MB
10/23/2014
11
2 pg, 85.54 KB
Filed clerk order: The opening brief [10] submitted by Jeffrey Spanier is filed. Within 7 days of the filing of
this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification,
attached to the end of each copy of the brief, that the brief is identical to the version submitted
electronically. Cover color: blue. The paper copies shall be printed from the PDF version of the brief
created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed
the excerpts of record [10] submitted by Jeffrey Spanier. Within 7 days of this order, filer is ordered to file
4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format
described in 9th Circuit Rule 30-1.6. [9287640] (WWP) [Entered: 10/23/2014 10:02 AM]
10/29/2014
12
Filed Appellant Jeffrey Spanier paper copies of excerpts of record [10] in 2 volume(s). [9294291] (WWP)
[Entered: 10/29/2014 11:28 AM]
10/29/2014
13
Received 7 paper copies of Opening brief [10] filed by Jeffrey Spanier. [9294681] (SD) [Entered:
10/29/2014 02:10 PM]
14
Filed order (HARRY PREGERSON and WILLIAM C. CANBY): Appellee has stated that it does not oppose
appellants motion to stay the district courts June 9, 2014 order pending appeal. Therefore, appellant's
motion to stay the district court's order pending appeal is granted. Appellants opening brief was filed on
October 23, 2014. Appellees answering brief is due November 21, 2014. Appellants optional reply is due
within 14 days after service of the answering brief. [9311225] (AF) [Entered: 11/13/2014 09:39 AM]
11/13/2014
1 pg, 32.3 KB
11/17/2014
15
6 pg, 30.15 KB
11/17/2014
16
1 pg, 33.51 KB
01/20/2015
17
1712 pg, 31.78 MB
01/21/2015
18
2 pg, 186.34 KB
Filed (ECF) Appellee USA Unopposed Motion to extend time to file Answering brief until 01/20/2015. Date
of service: 11/17/2014. [9314999] [14-50306] (Devine, Faith) [Entered: 11/17/2014 10:14 AM]
Filed clerk order (Deputy Clerk: CAG): The Governments motion for an extension of time is construed as
a motion to stay appellate proceedings. So construed, the motion is granted. This appeal is stayed until
January 20, 2015. On or before the expiration of the stay, the Government shall file the answering brief, or
file a motion that requests appropriate relief. If the Government files the answering brief, the reply brief
shall be due within 14 days after service of the answering brief. Failure to file a motion shall terminate the
stay. [9315544] (AF) [Entered: 11/17/2014 01:28 PM]
Submitted (ECF) Answering Brief and supplemental excerpts of record for review. Submitted by Appellee
USA. Date of service: 01/20/2015. [9388906] [14-50306] (Devine, Faith) [Entered: 01/20/2015 05:20 PM]
Filed clerk order: The answering brief [17] submitted by USA is filed. Within 7 days of the filing of this
order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to
the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover
color: red. The paper copies shall be printed from the PDF version of the brief created from the word
4/25/2016
14-50306 Docket
processing application, not from PACER or Appellate ECF. The Court has reviewed the supplemental
excerpts of record [17] submitted by USA. Within 7 days of this order, filer is ordered to file 4 copies of the
excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th
Circuit Rule 30-1.6. [9390048] (WWP) [Entered: 01/21/2015 01:35 PM]
01/21/2015
19
1 pg, 48.92 KB
Received Appellee USA notice to file document under seal. [9393629] (WWP) [Entered: 01/23/2015 11:15
AM]
01/21/2015
20
Filed ( UNDER SEAL ) Appellee USA paper copies of excerpts of record volume 7. [9393634] (WWP)
[Entered: 01/23/2015 11:16 AM]
01/26/2015
21
Received 7 paper copies of Answering brief [17] filed by USA. [9395670] (SD) [Entered: 01/26/2015 01:15
PM]
01/27/2015
22
Filed Appellee USA paper copies of excerpts of record [17] in 6 volume(s). [9397238] (WWP) [Entered:
01/27/2015 11:01 AM]
01/27/2015
23
Filed (ECF) Streamlined request for extension of time to file Reply Brief by Appellant Jeffrey Spanier. New
requested due date is 03/05/2015. [9397338] [14-50306] (Coleman, Benjamin) [Entered: 01/27/2015
11:21 AM]
01/27/2015
24
Streamlined request [23] by Appellant Jeffrey Spanier to extend time to file the brief is approved.
Amended briefing schedule: the optional reply brief is due 3/05/15. [9397852] (LN) [Entered:
01/27/2015 02:11 PM]
25
Submitted (ECF) Reply Brief for review. Submitted by Appellant Jeffrey Spanier. Date of service:
03/05/2015. [9447372] [14-50306] (Coleman, Benjamin) [Entered: 03/05/2015 04:25 PM]
03/05/2015
35 pg, 159.99 KB
03/06/2015
26
2 pg, 185.82 KB
Filed clerk order: The reply brief [25] submitted by Jeffrey Spanier is filed. Within 7 days of the filing of this
order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to
the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover
color: gray. The paper copies shall be printed from the PDF version of the brief created from the word
processing application, not from PACER or Appellate ECF. [9448020] (WWP) [Entered: 03/06/2015 11:04
AM]
03/11/2015
27
Received 7 paper copies of Reply brief [25] filed by Jeffrey Spanier. [9453591] (SD) [Entered: 03/11/2015
02:21 PM]
07/13/2015
28
Ordered electronic copies of appellees sealed excerpts of record. [9607556] (SOS) [Entered: 07/13/2015
11:36 AM]
07/14/2015
29
Received electronic copies of appellees sealed excerpts of record. [9609245] (SOS) [Entered: 07/14/2015
10:31 AM]
08/11/2015
30
Notice of Oral Argument on Thursday, October 22, 2015 - 09:00 A.M. - Courtroom 3 - Pasadena CA.
View the Oral Argument Calendar for your case here.
When you have reviewed the calendar, download the ACKNOWLEDGMENT OF HEARING NOTICE form,
complete the form, and file it via Appellate ECF or return the completed form to: PASADENA Office.
[9641934] (LN) [Entered: 08/11/2015 09:23 AM]
08/12/2015
31
2 pg, 29.98 KB
08/12/2015
32
1 pg, 19.2 KB
Filed (ECF) Acknowledgment of hearing notice. Location: Pasadena. Filed by Attorney Mr. Joseph
Orabona for Appellee USA. [9644399] [14-50306] (Orabona, Joseph) [Entered: 08/12/2015 12:49 PM]
Filed (ECF) Acknowledgment of hearing notice. Location: Pasadena. Filed by Attorney Mr. Benjamin Lee
Coleman for Appellant Jeffrey Spanier. [9645285] [14-50306] (Coleman, Benjamin) [Entered: 08/12/2015
05:43 PM]
09/29/2015
33
CJA travel authorization sent to Mr. Benjamin Lee Coleman for Jeffrey Spanier. Authorization number
9CJA14-503061015. [9699610] (KB) [Entered: 09/29/2015 09:54 AM]
10/09/2015
34
Terminated Faith Aline Devine for USA in 14-50306 (due to incorrect account info) [9714294] (JT)
[Entered: 10/09/2015 03:44 PM]
35
Filed (ECF) Appellant Jeffrey Spanier citation of supplemental authorities. Date of service: 10/19/2015.
[9722518] [14-50306] (Coleman, Benjamin) [Entered: 10/19/2015 09:59 AM]
10/19/2015
7 pg, 153.17 KB
10/22/2015
01/21/2016
36
ARGUED AND SUBMITTED TO JOHNNIE B. RAWLINSON, JACQUELINE H. NGUYEN and MICHAEL

A. PONSOR. [9728548] (BG) [Entered: 10/22/2015 12:01 PM]
37
FILED MEMORANDUM DISPOSITION (JOHNNIE B. RAWLINSON, JACQUELINE H. NGUYEN and

MICHAEL A. PONSOR) AFFIRMED IN PART; INDICTMENT DISMISSED, and CASE REMANDED WITH
INSTRUCTIONS TO REASSIGN FOR LIMITED PURPOSE OF DETERMINING WHETHER DISMISSAL
IS WITH OR WITHOUT PREJUDICE. FILED AND ENTERED JUDGMENT. [9834780] (RMM) [Entered:
01/21/2016 09:48 AM]
10 pg, 209.73 KB
02/16/2016
38
MANDATE ISSUED.(JBR, JHN and MAP) [9865015] (CW) [Entered: 02/16/2016 07:47 AM]
1 pg, 184.44 KB
4/25/2016
Exhibit 10
Case
Case 3:12-cr-00918-BEN
3:12-cr-00918-JM Document
Document446-9
175 Filed
Filed05/08/13
04/25/16 Page
Page12ofof21
4
1
2
3
4
5
6
7
8
9
LAURA E. DUFFY
FAITH A. DEVINE
MICHAEL G. WHEAT
Assistant U.S. Attorneys
California State Bar Nos. 146744/118598
JENNIFER GMITRO
California Bar No. 246797
Special Assistant U.S. Attorney
Federal Office Building
880 Front Street, Room 6293
San Diego, California 92101-8893
Telephone: (619) 546-6784
Faith.Devine@usdoj.gov
Attorneys for Plaintiff
United States of America
10
11
12
13
Plaintiff,
14
v.
15
DOUGLAS McCLAIN, JR. (2)

JEFFREY T. SPANIER, (3)
16
Defendants.
17
)
)
)
)
)
)
)
)
)
)
)
)
Criminal Case No. 12-CR-918-BEN

UNITED STATES TRIAL
MEMORANDUM
Date: May 14, 2013
Time: 9:00 a.m.
18
19
The United States of America, by and through its counsel, Laura E. Duffy, United
20
States Attorney, and Faith A. Devine, Michael G. Wheat, Assistant United States
21
Attorneys, and Jennifer Gmitro, Special Assistant United States Attorney, hereby files
22
the attached trial memorandum.
23
24
STATUS OF THE CASE
25
A.
INDICTMENT
26
On March 9, 2012, a federal grand jury in the Southern District of California
27
returned an Indictment against James T. Miceli (Miceli), Douglas McClain, Jr.
28
(McClain), and Jeffrey Spanier (Spanier), charging them with conspiracy, in
Case
Case 3:12-cr-00918-BEN
Document446-9
175 Filed
Filed05/08/13
04/25/16 Page
Page93ofof21
4
IV
WITNESS LIST
3
4
The Government reserves the right to change the order of, substitute, or add or omit
one of more witnesses:
1.
FBI Special Agent Anne Shultz
2.
FBI Special Agent John Roberts
3.
FBI Forensic Accountant April Riel
4.
FBI Forensic Computer Examiner Angela Rozsa
5.
Custodian of Records for Morgan Stanley
10
6.
Greg Witz
11
7.
Shea Shockley
12
8.
Kate Guier
13
9.
Diana Sigler
14
10.
Joshua Gold
15
11.
Mark Peikin
16
12.
Gerald Schlief
17
13.
Louis Paulino
18
14.
Paul Buhlman
19
15.
John Coulson
20
16.
Scott Wolstein
21
17.
James Hyatt
22
18.
Ken Yao
23
19.
Raymond Xia
24
20.
Dean Janes
25
21.
Thomas Piccoli
26
22.
Francis Burke
27
23.
Richard Sellers
28
24.
Steven Van Der Velden

9
12-CR-918-BEN
Case
Case3:12-cr-00918-BEN
Document446-9
175 Filed
Filed05/08/13
04/25/16 Page
Page104 of 21
4
25.
Stephen Ferrone
26.
Donald Dabisch
27.
Calvin Wallen
28.
David Selengut
29.
Todd Ollendorf
30.
Samantha Moss
31.
Jennifer Perillo
32.
Neil Kipperman
33.
FBI Special Agent William Brown
10
34.
Manuel Bello
11
35.
Brent Shapiro
12
36.
Richard Kornacki
13
14
LEGAL ISSUES
15
A.
16
The essential elements of conspiracy are:
17
1.
2.
3.
One of the members of the conspiracy performed at least one overt

act for the purpose of carrying out the conspiracy.
22
23
The defendant became a member of the conspiracy knowing of at

least one of its objects and intending to help accomplish it; and
20
21
There was an agreement between two or more persons to commit

an offense against the United States;
18
19
CONSPIRACY (18 U.S.C. 371)
To prove a violation of Section 371, the government must prove (1) an
24
agreement among two or more persons to commit an offense, (2) the defendants
25
knowing and voluntary participation, and (3) the commission of an overt act in
26
furtherance of the conspiracy. United States v. Ladum, 141 F.3d 1328, 1341 (9th Cir.
27
1998).
28
10
12-CR-918-BEN
Exhibit 11
(1585 of 1712)
Case
Document
402 Filed
08/18/14
Page
37 2ofof
Case:
Case3:12-cr-00918-BEN
14-50306,
3:12-cr-00918-JM
01/20/2015,
Document
ID: 9388906,
446-10
DktEntry:
Filed
04/25/16
17-8, Page
Page
122
of103
249
2
37
THEY WOULD HAVE BROUGHT THAT PERSON.
MIND GIVING SOMEBODY A PASS IF THAT'S WHAT IT TAKES TO TRY TO
CONVICT THIS SCAPEGOAT.
WE KNOW THAT THEY DON'T
THEY DID IT FOR MANNY BELLO.
IT IS NOT ABOVE THEM TO GIVE SOMEBODY IMMUNITY TO TRY
TO GET THEIR MAN.
AND THE BEST THAT THEY COULD COME UP WITH
WAS MR. BELLO, WHO WOULDN'T EVEN SAY THAT HE CONSPIRED WITH
MR. SPANIER AND THAT MR. SPANIER DID ANYTHING WRONG.
WAS A HUMAN BEING ON THIS GLOBE WHO COULD COME IN AND
INCRIMINATE MR. SPANIER, THEY WOULD HAVE DONE IT.
IF THERE
AND THE
10
SILENCE IS DEAFENING.
11
THAT MR. SPANIER REMAINED ALWAYS, ALWAYS ON THE OUTSIDE.
12
EXHIBITS THAT THEY THROW UP TO THE WALL HOPING THAT THEY'LL
13
STICK, THE ONES THAT THEY INSINUATE LOOK SUSPICIOUS, THAT THEY
14
WANT YOU TO LOOK AT WITH A JADED EYE AND A CYNICAL HEART, AND
15
HOLD AGAINST MR. SPANIER, AT THE END OF THE DAY, THEY SHOW HOW
16
LITTLE HE KNEW.
17
THE GOVERNMENT'S OWN PAPERWORK SHOWS
REMEMBER GOVERNMENT EXHIBIT 300.
THE
THIS IS THE
18
I'M-ONLY-GOING-TO-SAY-THIS-ONCE E-MAIL, FOR THREE AND A HALF
19
YEARS, ARGYLL HAS BEEN MY ONLY PRODUCT.
20
REPRESENTED ARGYLL WITHOUT KNOWING ANY OF THE FINE DETAILS OF
21
YOUR OPERATION.
22
MR. SPANIER WAS FRUSTRATED.
I'VE GLADLY
HE DID FEEL LIKE A
23
FAST-TALKING SALESMAN.
HE DID COMPLAIN HOW HARD IT IS TO SELL
24
A STORY WITHOUT KNOWING THE FACTS.
25
GENTLEMEN, IS THAT HE DIDN'T KNOW THE FACTS.
BUT THE POINT, LADIES AND

HE NEVER DOUBTED
1492
2
4 UNITED STATES OF AMERICA,

5
6
Criminal Case No. 12CR0918-JM
Plaintiff,
CERTIFICATE OF SERVICE
v.
7
8 JEFFREY SPANIER,
9
Defendant.
10
11
12
13
14
15
16
I, Joseph Orabona, the undersigned declare under penalty of perjury, that I am over
the age eighteen years and I am not a party to the above-entitled action; that I served the
following document: United States Response in Opposition to Defendants Motion to
Dismiss the Indictment with Prejudice, together with Exhibits 2 through 11, in the
following manner: by electronically filing with the U.S. District Court for the Southern
District of California using its ECF System:
17
18
19
1.
Timothy Scott
Email: tscott@timscottlaw.com
Attorney for Defendant Spanier
20
21
22
23
24
25
26
27
28
I have provided Exhibit 1 (which the United States moved to seal) to defense
counsel above via email.
I declare under penalty of perjury that the above is true and correct.
DATED: April 25, 2016.
/s/ Joseph J.M. Orabona
JOSEPH J.M. ORABONA
Assistant United States Attorney

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Case 3:12-cr-00918-JM Document 446 Filed 04/25/16 Page 1 of 16

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Case No. 12CR0918-JM

The Plaintiff, UNITED STATES OF AMERICA, by and through its counsel,

This Response in Opposition is based upon the

24 accompanying memorandum of points and authorities, exhibits, Spaniers Presentence

Case 3:12-cr-00918-JM Document 446 Filed 04/25/16 Page 2 of 16

The Ninth Circuit

Case 3:12-cr-00918-JM Document 446 Filed 04/25/16 Page 3 of 16

RELEVANT FACTUAL/PROCEDURAL BACKGROUND

As charged in the Superseding Indictment, Spanier participated in a massive fraud

5 conspiracy, with co-defendants Douglas McClain (McClain) and James Miceli

Tragically, co-defendant Miceli committed suicide in January 2013.

Co-defendant McClain was found to be responsible for restitution totaling

Case 3:12-cr-00918-JM Document 446 Filed 04/25/16 Page 4 of 16

Through companies that Spanier controlled, including a company he controlled

2 with Manuel Bello (Bello), he solicited victim-borrowers to pledge their stocks as

The Procedural History

A motion hearing was

Case 3:12-cr-00918-JM Document 446 Filed 04/25/16 Page 5 of 16

In between the forfeiture proceeding and the status hearing, the

17 Government received allegations of juror misconduct and began an investigation. See

Spaniers counsel indicated he was filing a motion to address the juror

Case 3:12-cr-00918-JM Document 446 Filed 04/25/16 Page 6 of 16

MEMORANDUM OF POINTS & AUTHORITIES

The Legal Standard

13 defendants motion. 18 U.S.C. 3162(a)(2). A district court has broad discretion

The Court Should Dismiss the Indictment Without Prejudice

Seriousness of the Offense

Case 3:12-cr-00918-JM Document 446 Filed 04/25/16 Page 7 of 16

The Sentencing Guidelines are instructive on measuring the seriousness of a fraud

Case 3:12-cr-00918-JM Document 446 Filed 04/25/16 Page 8 of 16

17 this factor weighs in favor of dismissal without prejudice.

Facts and Circumstances Which Led to Dismissal

Case 3:12-cr-00918-JM Document 446 Filed 04/25/16 Page 9 of 16

1 was thinking of a retrial date in September. See id. at 241.

Nevertheless, the Ninth

This is simply untrue.

The record reflects that Bello was

Spaniers counsel relies on the September minute order. This reliance is

Contrary to Spaniers contention, Bello was not a cooperating witness. He was a

Case 3:12-cr-00918-JM Document 446 Filed 04/25/16 Page 10 of 16

Case 3:12-cr-00918-JM Document 446 Filed 04/25/16 Page 11 of 16

Spanier argues that he requested an earlier date.

. . . Now with regards to Mr. Spanier, I dont know if the

defense is going to retry this or not or what your pleasure is. Do

me to do? I can set it for - - well, what is it the government

We were thinking of a retrial date in September.

Mr. Scott, is September okay with you?

I have a - - I have a pre-planned vacation, starting on the - - on

Saturday the 21st, that corresponds with my childrens fall

break. And thats the proverbial prepaid tickets and everything.

That is two weeks, starting September 21st. If its earlier in

September, then Im at the Courts service.

Case 3:12-cr-00918-JM Document 446 Filed 04/25/16 Page 12 of 16

2 earlier in September, the government attorney responded by saying: In light of that,

Spaniers counsel then made a

This is just a suggestion, your Honor. But it strikes me that

often times, retrials and whether there is a retrial and

negotiations in the interim often depend on the numerical divide

of the jury. Perhaps if we set a status for after the smoke

cleared, and after the forfeiture proceedings for Mr. McClain