[00:00:15] Speaker 01:
time and I'll try to give you a cue.

[00:00:17] Speaker 01:
Thank you so much your honor.

[00:00:20] Speaker 01:
May it please the court my name is Ernest Badway and along with my firm we represent the appellate Daniel Fitzgerald who is asking this court to allow him in

[00:00:43] Speaker 01:
as his access to the court.

[00:00:45] Speaker 01:
And finally, Your Honor,

[00:01:19] Speaker 01:
half of it was dismissed and the reason why I raised that before this court today is it demonstrates how limited the factual allegations and the claims that were presented in the complaint serve can serve as a basis for this indefinite stay.

[00:01:37] Speaker 01:
Your honors what I would also suggest to the court as well too when you look at the facts of this particular case is that they are allegations

[00:02:09] Speaker 04:
tried by the government in New York.

[00:03:35] Speaker 04:
action can be stayed during the pendency of any criminal action arising out of the same occurrence right so this standard is necessarily like we've got two cases are they talking about the same stuff roughly right when that's the standard aren't the pleadings the best evidence of what these two cases are about to be able to compare them your honor in all due respect to the court absolutely not because what we have here is

[00:04:14] Speaker 04:
it just says that we have to have two, we have to have a civil and a

[00:04:58] Speaker 01:
1595B talks about is an action brought under 1595A that talks about a victim bringing an action against a perpetrator.

[00:05:09] Speaker 04:
I understand that's the argument you're making.

[00:05:10] Speaker 04:
I'm not sure about that argument, but even if that was true, if you had the same defendant in a criminal and a civil case, and you had the pleadings describing what those cases were about, and those pleadings described the same occurrence,

[00:05:42] Speaker 01:
get to your case.

[00:05:43] Speaker 01:
Yes, in terms of that, Your Honor, the pleadings are not a valid basis for suggesting that there is a connection between what's in the criminal case and what is in a civil case, especially when it involves a third party like my client, Mr. Fitzgerald, who is not being charged in that criminal case.

[00:06:01] Speaker 01:
I don't think that the pleadings are, in fact, the best method of doing so.

[00:06:07] Speaker 01:
And when

[00:06:13] Speaker 01:
is actually requested to stay.

[00:06:15] Speaker 01:
They've actually had a higher burden.

[00:06:17] Speaker 01:
And what's happened here, and I suppose Your Honor, your answer would be to answer the hypothetical head on, and I know Your Honor's waiting for me to do that, and that is that given the fact that the court below has allowed the government the lesser burden, okay, where it

[00:06:51] Speaker 04:
where pleadings from a criminal case and a civil case involve the same defendants, because I'll give you that argument for purposes of the hypothetical, and indisputably are describing the same conduct.

[00:07:03] Speaker 04:
And we do have a victim that's the same in both cases.

[00:07:08] Speaker 04:
Why do I need evidence beyond the pleadings to tell me that this standard for a stay is met when the standard is just, do we have

[00:07:20] Speaker 01:
With your hypothetical, the problem with that analysis is that even if the charges were similar, we don't have any evidence in the record here that matches up with respect to the criminal

[00:07:54] Speaker 01:
the indictment and just copy that, then Your Honor would be right.

[00:07:57] Speaker 01:
There would be no difference between that.

[00:07:58] Speaker 01:
Exactly.

[00:07:59] Speaker 01:
And pleadings would be enough.

[00:08:00] Speaker 01:
Yes, pleadings at that particular juncture would be enough.

[00:08:03] Speaker 01:
I would also suggest to Judge, since it would be relying upon the indictment, since it would be relying on the indictment, the indictment has to be entered by the grand jury where there was probable cause established.

[00:08:14] Speaker 01:
So in Judge, in Your Honor, so that in that case, there would be an evidentiary burden that would have been met.

[00:08:19] Speaker 04:
Well, that would have, that was met here.

[00:08:31] Speaker 02:
Judge Gould is running from a couple questions.

[00:08:35] Speaker 02:
One is, is there any relevance to the fact

[00:09:10] Speaker 01:
was made and where a civil action was asked to being stayed because of a criminal action without the statute, we would argue as we set forth in our papers that this court and no court in the Central District of California would have granted a stay in this particular proceeding.

[00:09:26] Speaker 01:
You know, it's only because we're only here today because of the ambiguous language that's contained in the TVPRA.

[00:09:49] Speaker 01:
final pre-trial conference in this matter and we would have already been in trial.

[00:10:20] Speaker 01:
that aren't contained in the indictment and that is an important point your honors that I think can't be stressed enough no matter what the evidentiary burden and the fact is is that the evidentiary burden was very low in this case even though there's no statutory provision for it to be this particularly low and that the pleadings are not the repository that any court should look at in this particular situation especially when

[00:10:47] Speaker 01:
And that is a critical point that I don't think can ever be overemphasized.

[00:10:55] Speaker 01:
My client is not like some of the other defendants who have sought the state.

[00:10:59] Speaker 01:
My client wants the trial, wants the trial.

[00:11:18] Speaker 02:
So it's just my fault, so.

[00:11:22] Speaker 01:
I'm sorry, Your Honor.

[00:11:26] Speaker 01:
And Your Honors, I think it's critical for this Court to consider that this, that my client is seeking

[00:11:49] Speaker 01:
And he is looking to have this remedy.

[00:11:52] Speaker 01:
He's looking to have this day in court to be able to appear and to be able to present evidence in his defense and to have these allegations, allegations I might add, that don't always include

[00:12:19] Speaker 04:
Why isn't it

[00:13:35] Speaker 01:
in such a day in the criminal indictment, they don't say on such and such a day that in fact this happened, and they don't say it doesn't match on such and such a day that it happened in this particular situation.

[00:14:05] Speaker 01:
and said, okay, it looks kind of the same.

[00:14:09] Speaker 01:
That's, that's essentially why we're here today, why we have that indefinite stay.

[00:14:14] Speaker 01:
That's why we're here and what we're asking the court, and what we're asking the court to consider

[00:14:40] Speaker 01:
the court to reverse, and I'll say the rest for the moment.

[00:14:45] Speaker 04:
All right, I don't know who's going first on the other side of the V. And you don't either, apparently.

[00:14:53] Speaker ?:
Your Honor, this is Alex Sheppard.

[00:14:55] Speaker 03:
I think it would make the most sense for the government to go first.

[00:15:01] Speaker ?:
All right.

[00:15:04] Speaker 04:
I guess that's a little bit misleading, the other side of the V here, because we have sort of this extra party.

[00:15:23] Speaker 00:
My name is Jacqueline Kelly.

[00:15:24] Speaker 00:
May it please the court, I represent the United States in this appeal.

[00:15:30] Speaker 00:
I want to begin with an issue that my colleague of my counterpoint did not address in his remarks, which is I want to speak about the jurisdictional issue in this case.

[00:15:45] Speaker 00:
As this court is well aware,

[00:15:52] Speaker 00:
It is an exception, and it applies in exceptional cases, ones where there is an important interest at stake.

[00:16:01] Speaker 00:
This is not one of those cases.

[00:16:04] Speaker 00:
Danny Fitzgerald is a defendant in a civil sex trafficking case.

[00:16:10] Speaker 00:
The interest that he purports to hold is an interest in defending against those civil sex trafficking claims without delay.

[00:16:19] Speaker 00:
That is far afield from interests that have been recognized as important by this court and others, and it is not an interest that should be recognized by this court here.

[00:16:29] Speaker 04:
And the defendant's request for immediate review of this day order should be denied.

[00:16:50] Speaker 00:
of that doctrine is that it was developed and extended, including in the Blue Cross case, to protect and provide an

[00:17:24] Speaker 04:
as opposed to a plaintiff?

[00:17:26] Speaker 00:
Well, Your Honor, I do think it would be an extension beyond where the case law is now, and I think that it's not coincidental that those cases are limited to cases in which the plaintiff is seeking to move forward because the plaintiff is seeking to vindicate a right.

[00:17:41] Speaker 00:
So I do think that would be an extension, one that I don't think is warranted here, but also I don't

[00:17:49] Speaker 00:
the court has found that a party is being kept out of court.

[00:17:54] Speaker 00:
And in particular, I think the reason that this case is not analogous to those is because there's no indication on this record that the civil action wouldn't ever proceed.

[00:18:05] Speaker 00:
In fact, there are many markers that show the opposite.

[00:18:20] Speaker 00:
the government to provide six-month updates, providing updates on where the criminal prosecution stood.

[00:18:26] Speaker 00:
And so there would not be a point in time where the district court did not know and was keeping a proceeding state where the criminal prosecution had, in fact, ended.

[00:18:52] Speaker 00:
Well, I think that's one part of it, Your Honor.

[00:18:54] Speaker 00:
The other part that I think is important is that the underlying criminal case is moving forward.

[00:19:00] Speaker 00:
This is not, you know, analogous to a situation where, for instance, like in Davis, where there are competency proceedings that show no indication of ever being resolved.

[00:19:10] Speaker 00:
In fact, the criminal case against Peter Nygaard and the related investigation, those things are moving forward, both in the United States and abroad.

[00:19:51] Speaker 04:
to answer for the charges here.

[00:19:52] Speaker 00:
Yes.

[00:19:53] Speaker 00:
So obviously, I can't provide a date certain.

[00:19:55] Speaker 00:
However, I do have markers that the court can look to.

[00:19:58] Speaker 00:
So all three cases that are pending in Canada are moving forward.

[00:20:02] Speaker 00:
He has already been tried in one of those cases, the Ontario case.

[00:20:06] Speaker 00:
And sentencing in that case is scheduled for May.

[00:20:08] Speaker 00:
He has a second trial scheduled for July in the Quebec matter.

[00:20:14] Speaker 00:
And then his third case, which is the Manitoba case that was last filed, is proceeding with a conference

[00:20:26] Speaker 00:
Canadian proceedings and an extradition.

[00:20:29] Speaker 00:
And we expect that by the time those Canadian proceedings are resolved, extradition will be finalized and he will be able to proceed here.

[00:20:37] Speaker 00:
So this is not a case I think that would be at the outer edge of an indefinite stay.

[00:20:45] Speaker 00:
I think that the TVPRA in particular anticipates like these days.

[00:20:50] Speaker 00:
I think the fact that the TVPRA state provision applies to both an action as defined as an investigation and prosecution shows that.

[00:21:20] Speaker 00:
those criminal allegations.

[00:21:22] Speaker 00:
And so I think that the TV parade expressly anticipates that the state may be lengthy.

[00:21:30] Speaker 00:
And here we have a charged case, we have markers that we can look at to how that case is going to move forward.

[00:21:37] Speaker 00:
And so I

[00:22:01] Speaker 00:
not aware of a case that sets forth a particular evidentiary burden that is required by the TVPRA.

[00:22:10] Speaker 00:
What the district court found here in this case is that the triggering of the stay is very straightforward on these facts.

[00:22:18] Speaker 00:
The defendant, Danny Fitzgerald, is an alleged co-conspirator of the charged criminal defendant, Peter Nygaard, and the government has told the court that some of the plaintiffs in the civil case are victims in the Nygaard case.

[00:22:32] Speaker 00:
to be sufficient and the government endorses that view.

[00:22:35] Speaker 00:
There is no case that the government is aware of where there's a particular evidentiary burden that's sought.

[00:22:42] Speaker 00:
The cases that the defendant relies on in his brief, the Tianmen Wang case and Cortez Romero, those are both cases where the defendant sought the stay.

[00:22:54] Speaker 00:
And so there were

[00:22:59] Speaker 00:
applicable here.

[00:23:00] Speaker 00:
There they did not have a proffer or information from the government that was before the court that proffered that there was sufficient overlap, overlap between the conduct underlying the civil claims and underneath the criminal

[00:23:39] Speaker 04:
that the rules that apply to you

[00:23:53] Speaker 00:
state provision.

[00:23:54] Speaker 00:
And we agree agree with that.

[00:23:56] Speaker 00:
But we'd also agree with what the district court in the RV con case in the Eastern District of New York said that the government is quote uniquely competent and quote to provide a conclusive report of whether there is sufficient overlap.

[00:24:13] Speaker 00:
The government is uniquely situated to know what the conduct is under investigation.

[00:24:18] Speaker 00:
I don't know that

[00:24:30] Speaker 00:
your honor we do think that in this case

[00:24:46] Speaker 00:
out in great detail the conduct that is underlying the charges against Peter Nygaard in the Southern District of New York, that there is a sufficient record based on those two things.

[00:24:56] Speaker 00:
In addition to that, in this case you do have the government's proffer that victims in the Nygaard case overlapped with the claimants in the Danny Fitzgerald civil case.

[00:25:07] Speaker 04:
There's nothing evidentiary about that.

[00:25:09] Speaker 04:
It's a statement from the government.

[00:25:11] Speaker 04:
It's not sworn.

[00:25:12] Speaker 04:
It's not evidentiary.

[00:25:15] Speaker 00:
well your honor courts rely on informal proffers from the government in a lot of different settings and I think here the government's indication that there is overlap is sufficient even without an affidavit that said in the court below the government offered to provide additional information ex parte to the court what the government did not want to do

[00:25:51] Speaker 00:
fairly and inappropriately provide both a civil defendant, Danny Fitzgerald, and a criminal defendant awaiting extradition, who's not even in the United States yet, with additional information about the identities of victims in the criminal case and about other facts relating to the prosecution.

[00:26:10] Speaker 00:
That seems like the exact sort of burden that 1595B1 seeks to avoid, which is

[00:26:22] Speaker 00:
the government to be unfettered in carrying out the criminal investigation and prosecution under the TVPRA.

[00:26:29] Speaker 00:
And if the government was required to provide information publicly or provide information to someone who is alleged to be a co-conspirator, as here, of an indicted sex trafficker, that would undoubtedly prevent the government from proceeding in an

[00:26:51] Speaker 04:
that's probably true, but that doesn't explain why the government

[00:27:16] Speaker 00:
Well, I don't think that that is required under the statute.

[00:27:20] Speaker 00:
And like I said, the government was willing to provide additional information to the district court below.

[00:27:25] Speaker 00:
However, I think other courts have found and it would be appropriate for this court to find that there is no.

[00:27:34] Speaker 00:
information to the court and in a case like this one where the pleading itself overlaps so significantly with the speaking allegations in the indictment.

[00:27:44] Speaker 00:
This is not a case that's on the outer edges of what would be a sufficient record from which to find that there is sufficient overlap.

[00:28:05] Speaker 02:
Does a federal indictment carry any evidentiary weight?

[00:28:16] Speaker 00:
Well, Your Honor, I think as applicable here to the state provision, the criminal indictment offers a view into the conduct that the government is investigating and prosecuting.

[00:28:27] Speaker 00:
And the state provision applies when both the

[00:28:36] Speaker 00:
at the investigation stage, you would not have any formal public pleading outlining the allegations.

[00:28:42] Speaker 00:
But here because Peter Nygaard was indicted, you do have a significant record detailing the conduct that is part of the government's investigation, which includes Peter Nygaard's

[00:29:07] Speaker 02:
different in nature than a complaint in a private suit where it's just making allegations.

[00:29:18] Speaker 00:
I do think it's different in that there's a finding of probable cause by a grand jury with respect to the indictment in this case, so I agree, Your Honor.

[00:29:28] Speaker 00:
different in nature.

[00:29:31] Speaker 00:
That said, I think what's necessary here, and I would go back to the text of the statute itself, is just that there be a record that's sufficient to find that the criminal action is

[00:29:52] Speaker 00:
which are lifted and quoted extensively in the civil complaint against Danny Fitzgerald, that that does provide a sufficient record.

[00:30:03] Speaker 00:
Thank you, Your Honor.

[00:30:05] Speaker 00:
I'm almost out of time.

[00:30:08] Speaker 00:
There's just one more point that I wanted to make with respect to the triggering of the state provision.

[00:30:13] Speaker 00:
The government's not aware of cases requiring that there be perfect overlap between the defendants in a civil

[00:30:22] Speaker 00:
TVPRA suit and in a criminal TVPRA suit and I think the reasons for that are pretty clear which is that

[00:31:04] Speaker 02:
support of showing there's probable cause as to why that would give any evidentiary context to the indictment.

[00:31:18] Speaker 00:
Yes, Your Honor.

[00:31:19] Speaker 00:
What I would say on that point is that the necessary

[00:31:31] Speaker 00:
for a grand jury supporting the criminal charges in the indictment.

[00:31:38] Speaker 00:
And that particular indictment with those speaking allegations was put before a grand jury.

[00:31:43] Speaker 00:
And so I think that the court here can find that that indictment provides