Академический Документы
Профессиональный Документы
Культура Документы
v. No. 1:08cv0242-HTW-LRA
MEMORANDUM IN SUPPORT OF
MOTION TO STRIKE
Exhibit to their Motion to Disqualify and a portion of their Memorandum in Support must be
struck.
Specifically, the Defendants seek to strike docket entry [138-3] based on hearsay. That
entry is the Exhibit “C” to USF&G’s Motion to Disqualify [138] Mr. Minor’s counsel, Oliver E.
Diaz, Jr. Further, the portion of the Memorandum in Support of the Motion to Disqualify [139]
that relies upon the Exhibit, namely page 3, should also be struck.
Exhibit “C” is pure hearsay, which “is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” FRE 801(c). Further, “[a] comment by a party made out of court and not under oath
is inadmissible hearsay.” Battle ex rel. Battle v. Memorial Hosp. at Gulfport, 228 F.3d 544,
USF&G carefully edits a component of Judge J.N. Randall’s testimony from the first
criminal trial of Paul Minor and Wes Teel to bolster their argument “that Judge Wes Teel
Page 1 of 4
Case 1:08-cv-00242-HTW-LRA Document 161 Filed 12/09/10 Page 2 of 4
somehow knew the substance of the unpublished Omnibank decision and that this motivated Teel
to assist Minor in the Peoples Bank case.” [139] at 3. They then quote Randall as saying the
[139] at 3. This is pure hearsay and should be excluded. Further, as the Fifth Circuit held in the
Battle case, even if this were not hearsay, Wes Teel is a party to this case, and an unsworn, out-
Nor does USF&G give the full picture about the “courthouse scuttlebutt” he related on
direct. During the criminal trial counsel for the defendants raised the strong presumption that
anything Randall related about the Omnibank case was hearsay. Because of this concern, the
Bench questioned Randall, who admitted that he knew nothing about Justice Diaz or what he had
or had not done. In reference to the hearsay relied upon by USF&G in filing its Motion to
THE COURT: All right. In your grand jury testimony, you mentioned some
scuttlebutt concerning Justice Diaz.
...
Now, the source of this information, do you recall who that was?
THE WITNESS: No. No, Your Honor. I don’t have—as far as Justice Diaz is
concerned, I don’t have any independent knowledge of anything dealing with
that one as far as he is concerned. That was just some scuttlebutt around the
courthouse. And I—really and truly, I didn’t put a whole lot of faith in it.
Page 2 of 4
Case 1:08-cv-00242-HTW-LRA Document 161 Filed 12/09/10 Page 3 of 4
[158-2], at 3474-75 (emphasis added). So under questioning from Judge Wingate, Randall
The Court then admonished the witness that any second-hand rumors or scuttlebutt would
be hearsay, and therefore wholly inadmissible. At 3476. Randall then said if he had anything to
USF&G has not only ignored the fact that Randall disowned his grand jury testimony,
they ignored that it was already characterized as hearsay. They are simply attempting to elevate
Because Exhibit C is pure hearsay from J.N. Randall, it must be struck from the Record.
Further, to the extent any components of USF&G’s Motion or Memorandum rely upon such
Page 3 of 4
Case 1:08-cv-00242-HTW-LRA Document 161 Filed 12/09/10 Page 4 of 4
CERTIFICATE OF SERVICE
I, Oliver E. Diaz, Jr. do hereby certify that we have sent a true and correct copy of the above
and foregoing Memorandum in Support of the Motion to Strike to the following via electronic
filing:
Neil J. Dilloff
DLA Piper US, LLP
6225 Smith Avenue
Baltimore, Maryland 21209 -3600
Page 4 of 4