[00:00:00] Speaker 02:
Now we'll begin with the first case this morning, United States v. Darman, 23-4074.

[00:00:07] Speaker 02:
Counsel for appellant, if you would make your appearance, and please proceed.

[00:00:13] Speaker 01:
Good morning, Your Honors.

[00:00:15] Speaker 01:
May it please the Court, Benjamin Waxman of the Miami law firm, Black & Schrebnick, together with co-counsel Howard Schrebnick sitting at counsel table, and Ed Armolino and Alexa Klein sitting directly behind him for the appellant

[00:00:30] Speaker 01:
Mr. Derman.

[00:00:32] Speaker 01:
The district court abused its discretion in failing to grant a new trial based on jury misconduct, including and emerging from the posting of their verdicts ignited the nation on the jury room door.

[00:00:47] Speaker 01:
One misdeed after another exacerbated the extreme prejudice to Mr. Derman.

[00:00:55] Speaker 01:
During jury selection, Juror 3 brought a People magazine into the jury room.

[00:01:00] Speaker 01:
That was in late January 2020.

[00:01:03] Speaker 01:
Some two to three weeks into trial, Juror 5 paged through the magazine, fixated on the burning chair ad, and posted it on the jury room door.

[00:01:16] Speaker 01:
This disturbing ad highlighted the incendiary national consequences

[00:01:21] Speaker 01:
of finding a defendant not guilty in a notable case that might be questioned by the public.

[00:01:28] Speaker 01:
A courtroom clerk saw the posted ad, took it down, and then reposted it more firmly with scotch tape.

[00:01:37] Speaker 01:
The posted ad now had the imprimatur of the court on it.

[00:01:41] Speaker 01:
Around the same time in mid-February, Juror 16 heard a juror state in a group that Mr. Garagos

[00:01:50] Speaker 01:
Durman's counsel represented Michael Jackson in the trial and also heard a group of jurors respond, that's common knowledge.

[00:02:01] Speaker 01:
On February 24th, Juror 6 researched the four cases on the ad, including the Michael Jackson case, the O.J.

[00:02:12] Speaker 01:
Simpson case, and the George Zimmerman case on her phone in direct violation of two

[00:02:19] Speaker 01:
specific orders that the court gave during jury selection.

[00:02:23] Speaker 01:
One was prohibiting the jurors from doing any research related to the case, and the second was prohibiting them from using any kind of electronic devices while serving as jurors.

[00:02:37] Speaker 01:
On the same day, Security Officer Heritage heard jurors three and six state in a group of about eight jurors, he's the one who got Michael Jackson off.

[00:02:49] Speaker 01:
Juror 7 then added to the discussion that Michael Jackson had been on trial for child molestation.

[00:02:57] Speaker 01:
Juror 3 then added that Michael Jackson was found not guilty and that doves were released from the courtroom steps for each not guilty verdict and that her husband would have liked to have shot all the doves.

[00:03:10] Speaker 02:
And that's a nice place for me to segue in, counsel.

[00:03:13] Speaker 02:
It seems to me that

[00:03:16] Speaker 02:
This parade of horribles, we can take them as they will.

[00:03:21] Speaker 02:
But the reality is the district court did a thorough hearing to assess what the facts were here.

[00:03:29] Speaker 02:
And in the Dove situation, it turns out that the juror's husband is a hunter.

[00:03:34] Speaker 02:
And so the implication that somehow or other he wanted to shoot the Doves because he was angry about Michael Jackson, there seems to be no validation to that.

[00:03:44] Speaker 02:
And go ahead, please.

[00:03:46] Speaker 01:
One of the jurors specifically said that they understood Juror 3's remarks to reflect her disapproval with the Michael Jackson verdict.

[00:03:56] Speaker 02:
Did the court not interview every juror to try to discern whether there was prejudice?

[00:04:02] Speaker 01:
The court did, and I intend to go through point by point how the jury's findings are simply unreasonable on this record that was before that court.

[00:04:13] Speaker 01:
and unsupported by the facts.

[00:04:16] Speaker 02:
And is the standard unreasonable or clearly erroneous?

[00:04:21] Speaker 02:
Well, that's a distinction with the difference.

[00:04:23] Speaker 02:
If it is clearly erroneous, if there's any foundation in the record for it, we're supposed to validate it.

[00:04:28] Speaker 02:
Please, go ahead.

[00:04:29] Speaker 01:
Let me show you how these findings were clearly erroneous.

[00:04:32] Speaker 01:
So first, the judge said that there was absolutely no basis to excuse Juror 6

[00:04:38] Speaker 01:
and that she was, quote, forthright and truthful.

[00:04:41] Speaker 01:
But Jur 6 clearly violated the two orders regarding not researching anything having to do with the case and not using any kind of electronic technology.

[00:04:52] Speaker 01:
Yet the court found in its order that there was no basis to excuse her.

[00:04:58] Speaker 01:
Jur 6 failed to come to the judge and report, as the instructions required, that she had done this research.

[00:05:06] Speaker 00:
Let me interrupt for a second.

[00:05:08] Speaker 00:
jurors talk all the time.

[00:05:09] Speaker 00:
When I've been sitting as a district judge, I know they talk all the time.

[00:05:13] Speaker 00:
But the question isn't whether they can talk and say, hi, good morning.

[00:05:16] Speaker 00:
Was it a good game last night on TV?

[00:05:19] Speaker 00:
It's whether they talk about the case and try to decide the case.

[00:05:23] Speaker 00:
So what conversations were shown to have been related to the merits of this case?

[00:05:32] Speaker 01:
Well, very specifically, the statements regarding Mr. Garagos

[00:05:37] Speaker 01:
having represented Michael Jackson, true or false?

[00:05:40] Speaker 00:
No, that is not about this case.

[00:05:41] Speaker 00:
That is about a lawyer's background.

[00:05:44] Speaker 00:
My question is, was there any conversation about the merits of this case?

[00:05:51] Speaker 00:
And I didn't see any.

[00:05:53] Speaker 01:
There was no record of specific conversations that the jury was, for instance, deliberating.

[00:05:58] Speaker 00:
We do not prohibit jurors to talk.

[00:06:01] Speaker 00:
I mean, I don't think there's anything wrong with a juror saying, boy, that lawyer was

[00:06:07] Speaker 00:
got a good suit on today or that lawyer sure had troubles with his words, getting him out or something like that.

[00:06:14] Speaker 00:
I don't think that's an extraordinary thing for jurors to say.

[00:06:19] Speaker 01:
But the problem is, is that here the jurors had discussions about Durman's counsel representing Michael Jackson in a sexual molestation case where their verdicts ignited the nation

[00:06:37] Speaker 01:
suggested that his tactics or his representation in that case were widely disapproved by the nation and the public.

[00:06:48] Speaker 01:
And this was at a time when this jury was about to deliberate the guilt or innocence of Mr. Derman, who was represented by Garagos, who had previously engaged in this representation of Michael Jackson

[00:07:05] Speaker 01:
that was widely disapproved.

[00:07:07] Speaker 01:
So any juror that was there and aware of this would naturally be thinking, this is precisely that kind of a case where I may become the target of this widespread disapproval.

[00:07:23] Speaker 00:
Was there discussions among the jurors about that statement you just hypothesized?

[00:07:31] Speaker 01:
No.

[00:07:32] Speaker 01:
Well, there were discussions to the extent that, again, Juror 3 said her husband would have shot all the doves.

[00:07:41] Speaker 00:
Well, I think that's a different story.

[00:07:43] Speaker 00:
But go ahead with your presentation.

[00:07:46] Speaker 01:
So the district court, again, turning to the district court's findings, said that the ad was akin to, was like a decoration, or that it was no different than a landscape painting or a cartoon.

[00:07:59] Speaker 01:
Well, you've seen the ad.

[00:08:01] Speaker 01:
It's simply not akin to a landscape painting or a cartoon.

[00:08:06] Speaker 01:
Instead, again, it highlighted the incendiary national consequences of finding a defendant not guilty in a high-profile case where that verdict might be disapproved by the public.

[00:08:24] Speaker 01:
Juror 5 certainly saw a connection.

[00:08:26] Speaker 01:
He said this, meaning the

[00:08:29] Speaker 01:
the jury deliberations was evocative of what was in the ad.

[00:08:35] Speaker 01:
Jur 5 stated that this was the room where the jury speaks and that the image of the burning chair, it's a rather disturbing image, represents the jury's identity.

[00:08:48] Speaker 01:
Jur 16 also saw the connection and said, it's like the jurors in the hot seat.

[00:08:54] Speaker 01:
If you are the judge of somebody,

[00:08:56] Speaker 01:
It puts you in the hot seat.

[00:08:58] Speaker 00:
So these jurors were privately interviewed by the judge and assured the judge they could be fair.

[00:09:07] Speaker 00:
Isn't that correct?

[00:09:08] Speaker 01:
That is correct.

[00:09:10] Speaker 01:
And this court has recognized, and for instance, the US Supreme Court, Justices Brennan and O'Connor have recognized that jurors are reluctant to expose any bias that they have to a court.

[00:09:26] Speaker 01:
And in fact, in this court's decision in Chathandra, I think Judge Seymour, you might have been on that panel, the court recognized that jurors' assurances that prejudicial remarks of a trial judge would not affect deliberations even after detailed and prompt curative instructions

[00:09:52] Speaker 01:
are insufficient to overcome prejudice from extraneous information.

[00:09:57] Speaker 02:
It can be.

[00:09:58] Speaker 02:
But I mean, in that situation, I find it very hard to compare that case to this case.

[00:10:04] Speaker 02:
You have a judge speaking, a judge talking about it being a smokescreen.

[00:10:09] Speaker 02:
You have an article in the paper that comes out later.

[00:10:12] Speaker 02:
I don't see anything near that here.

[00:10:14] Speaker 02:
I mean, what is illustrated by the colloquy you're having with Judge Ebell is that

[00:10:22] Speaker 02:
There are a list of things that happen, but then we have to draw the conclusions or make the inference that somehow or other it impacted anyone.

[00:10:33] Speaker 02:
As I understand it, the views that you were talking about, there is no evidence that anybody talked with anybody else about their views on these issues, right?

[00:10:42] Speaker 01:
Well, again, other than if these conversations happened in a group in the presence of potentially eight or more jurors,

[00:10:52] Speaker 01:
where they were again identifying German's counsel, the person who was making the arguments for him, who was examining the witnesses as the lawyer who represented Michael Jackson in a case that was on this posted ad.

[00:11:10] Speaker 02:
And if I'm a Michael Jackson fan, I think that's the coolest thing in the world, that you have a lawyer who represents Michael Jackson.

[00:11:17] Speaker 02:
I mean, there's no necessary

[00:11:19] Speaker 02:
imprints of prejudice that comes from that.

[00:11:22] Speaker 02:
So what?

[00:11:23] Speaker 02:
He's a celebrity.

[00:11:24] Speaker 02:
I feel cool because I'm in a case involving a celebrity lawyer.

[00:11:27] Speaker 02:
What's the implication of that?

[00:11:29] Speaker 01:
The ad said that these jury's verdicts ignited the nation.

[00:11:35] Speaker 02:
Yes, and I recall reading quite a bit of the record and I don't call anybody

[00:11:40] Speaker 02:
a lot of the people didn't even remember the ad.

[00:11:43] Speaker 02:
I mean, the ad was not something that they fixated on.

[00:11:47] Speaker 01:
Actually, I think the record reflects that all but one of the jurors recalled seeing the ad.

[00:11:52] Speaker 01:
Most of them required one or more of the listed cases on the ad, and most many of them recalled the image of the burning chair.

[00:12:01] Speaker 01:
So the jurors were very much aware of this ad, were present during these discussions that associated, again,

[00:12:10] Speaker 01:
Durman's counsel who represented him was making arguments and would be making arguments Why they should not find mr. Durman guilty that they were he was Associated with this verdict that this ad suggested was disapproved widely by the nation Let me cut you off for a quick second, please just because I want to get to one point

[00:12:33] Speaker 02:
You talked about Chathandra, and I would benefit from knowing why you think that case maps onto this case or why you think they're similar enough that it has persuasive force for you, particularly since we have to deal with the question of the curative instructions that the district court gave here, one, and two, the weight of the evidence that existed here.

[00:12:57] Speaker 02:
So with those things in the background, tell me why that case should mean anything to us.

[00:13:02] Speaker 01:
I agree with the court that the facts are very different from this.

[00:13:05] Speaker 01:
It's merely to demonstrate that this court has recognized that notwithstanding a juror's assurances that something did not prejudice them or impact their impartiality, that this court recognizes in some instances that may not be the case.

[00:13:23] Speaker 01:
The other case from this court is Gonzalez versus Thomas, the case about implied bias

[00:13:31] Speaker 01:
which recognize the same thing.

[00:13:33] Speaker 01:
Implied bias may be found even though jurors deny impartiality.

[00:13:39] Speaker 01:
I apologize.

[00:13:39] Speaker 01:
Unless the Court has other questions, I see that my time's just about out.

[00:13:43] Speaker 01:
I'd like to reserve some time for rebuttal.

[00:13:46] Speaker 01:
Thank you.

[00:13:52] Speaker 03:
May it please the Court?

[00:13:54] Speaker 03:
Alyssa Hart-Mahan for the United States.

[00:13:57] Speaker 03:
I'd like to start by clearing up some factual matters here.

[00:14:01] Speaker 03:
First of all, there's no evidence in the record that Juror 6 violated the court's instructions and the court so found in its thorough order denying the mistrial here.

[00:14:11] Speaker 03:
So Juror 6 did not know that there was any connection between the Michael Jackson case or any of the cases listed on the advertisement and the instant case.

[00:14:21] Speaker 03:
She testified that she had no idea that Mr. Garagos had ever represented Michael Jackson and was only looking up the cases out of curiosity.

[00:14:30] Speaker 03:
Second, the district court told the jurors not to use electronic devices while they were serving as jurors.

[00:14:37] Speaker 03:
But there was no ban on them using their phones when they were not sitting in court or deliberating.

[00:14:44] Speaker 03:
These jurors were waiting for transportation.

[00:14:46] Speaker 03:
They needed to be transported every day.

[00:14:48] Speaker 03:
And there was no violation of the court's order in juror six using her phone.

[00:14:52] Speaker 02:
And let me ask, didn't the court's order relate to doing research as it relates to

[00:14:57] Speaker 02:
This case?

[00:14:58] Speaker 02:
Correct.

[00:14:59] Speaker 02:
Correct.

[00:14:59] Speaker 02:
And the cases she was looking at were not this case, right?

[00:15:02] Speaker 02:
Correct.

[00:15:03] Speaker 03:
Correct.

[00:15:03] Speaker 03:
She had no reason to believe that.

[00:15:05] Speaker 03:
The district court found that she was forthcoming, honest, and credible.

[00:15:10] Speaker 03:
And this court typically defers to those findings made by district judges.

[00:15:14] Speaker 03:
The district court here conducted extensive interviews of all of the jurors multiple times.

[00:15:19] Speaker 03:
So there is an extensive record, you know, transcript record to look at.

[00:15:23] Speaker 03:
But the district court made findings that the jurors did not view the advertisement as an inflammatory warning, specifically made those findings.

[00:15:31] Speaker 03:
And the interviews with the jurors support that finding.

[00:15:34] Speaker 03:
Several of the jurors said that they thought the advertisement was a joke of some sort.

[00:15:38] Speaker 03:
While some of them remembered some details, some of the jurors didn't remember that there were cases on the advertisement at all.

[00:15:46] Speaker 03:
And there's nothing in the record to suggest that the jurors connected the advertisement

[00:15:50] Speaker 03:
to this case, either the charges against defendant or even Mr. Gyaragos.

[00:15:55] Speaker 03:
There was evidence that the jurors were aware that he had had celebrity clients in the past.

[00:16:03] Speaker 03:
But the court found that that would not affect the jury's impartiality.

[00:16:08] Speaker 03:
And this court should defer to the district court's credibility findings, the district court who was able to interview these jurors multiple times and make those credibility findings after those in-person conversations.

[00:16:20] Speaker 03:
I'd like to address the Shatandara case.

[00:16:26] Speaker 03:
And I think in that case, this court presumed prejudice because there was extraneous information about the case at issue.

[00:16:36] Speaker 03:
The jurors were exposed to extraneous information about the case at issue.

[00:16:40] Speaker 03:
Jurors had seen a headline reporting that the district judge had criticized the defense's strategy, which was

[00:16:46] Speaker 03:
clearly related to the case before them.

[00:16:50] Speaker 03:
And both the Supreme Court and this court's precedents make clear that when there's extraneous information about the case, such as an attempt to bribe a juror or outside information about the defendant, a presumption of prejudice arises.

[00:17:03] Speaker 03:
Here, because the information at issue had no relation to this case, such a presumption should not arise.

[00:17:10] Speaker 03:
And in that case, the district court is entitled to make findings about

[00:17:13] Speaker 03:
whether the jurors are actually biased, whether there's any bias.

[00:17:19] Speaker 03:
The court here found no bias.

[00:17:21] Speaker 03:
The court issued detailed curative instructions.

[00:17:23] Speaker 03:
I would also note for the record that to the extent any of the jurors, and the court security officer for that matter, believed that Mr. Garagos represented Michael Jackson in his criminal trial, that belief was incorrect.

[00:17:36] Speaker 03:
Mr. Garagos did not represent Michael Jackson in his criminal trial.

[00:17:40] Speaker 03:
And the district court's curative instructions made that clear.

[00:17:43] Speaker 03:
stating that none of the counsel in the instant case were involved in any of the cases listed in the advertisement.

[00:17:52] Speaker 03:
Secondly, as I believe Chief Judge Holmes noted, in Shandatara, this court affirmed, despite presuming prejudice, because the overwhelming weight of the evidence fully supported the jury's verdict.

[00:18:08] Speaker 03:
And the same is true here.

[00:18:10] Speaker 03:
The district court found in its omnibus order denying a new trial that the overwhelming weight of credible evidence fully supported the jury's verdict.

[00:18:19] Speaker 03:
This was a lengthy trial.

[00:18:21] Speaker 03:
There was a lot of evidence.

[00:18:23] Speaker 03:
And the testimony of defendants co-conspirators, Jacob and Isaiah Kingston, was fully corroborated by text messages, emails, bank records, and the testimony of other witnesses, some of whom were co-conspirators and some of whom were not.

[00:18:38] Speaker 03:
As the district court noted,

[00:18:40] Speaker 03:
If you follow the money, the defendant never came forward with any explanation for why he received over $70 million from the conspiracy.

[00:18:48] Speaker 03:
And so his efforts to discredit the testimony of his co-conspirators fell flat because of this overwhelming evidence of the defendant's guilt.

[00:18:59] Speaker 03:
If the court has any additional questions about any of the other issues?

[00:19:04] Speaker 02:
Yes.

[00:19:05] Speaker 02:
Okay.

[00:19:06] Speaker 02:
Let's focus for a moment on the Brady claim.

[00:19:11] Speaker 02:
Yes.

[00:19:11] Speaker 02:
And there was a statement in your brief, in the government's brief that said that it was not aware of the Kazi Garcia lawsuit until it actually received the motion.

[00:19:24] Speaker 02:
And I'm just trying to get the timeline right.

[00:19:27] Speaker 02:
as to understand was the, well, one, did the district court ever make any sort of findings about what the background would have been or in terms of understanding what the government would have been aware of and what the government wouldn't have been aware of in determining the question of sort of suppression?

[00:19:45] Speaker 03:
Yes, so the district court addressed, there were sort of two separate questions below.

[00:19:50] Speaker 03:
The first was whether the government had access to Kazi's cell phone because these messages with

[00:19:56] Speaker 03:
Santiago Garcia were on Qazi's cell phone.

[00:19:59] Speaker 03:
And the government had received screenshots of Qazi's cell phone from Qazi's lawyer.

[00:20:04] Speaker 03:
Those screenshots were forwarded to defense counsel.

[00:20:08] Speaker 03:
But the government never imaged Qazi's cell phone and did not have access to its cell phone.

[00:20:13] Speaker 03:
Qazi was not a cooperator.

[00:20:15] Speaker 03:
He was a third party witness.

[00:20:16] Speaker 03:
He testified before the grand jury, and he testified at trial subject to a subpoena.

[00:20:21] Speaker 03:
So he never entered into a cooperation agreement with the government.

[00:20:25] Speaker 03:
He wasn't a confidential informant.

[00:20:26] Speaker 00:
Did they have his cell phone?

[00:20:27] Speaker 00:
Did they take possession of his cell phone?

[00:20:29] Speaker 00:
No, they did not have possession of his cell phone.

[00:20:31] Speaker 00:
Did he get screenshots from his cell phone?

[00:20:33] Speaker 03:
Causey's attorney forwarded screenshots to the government.

[00:20:37] Speaker 03:
And those were turned over.

[00:20:39] Speaker 02:
And let me ask you, and this is also a question perhaps for defense counsel, but to your knowledge, was there any impediment in

[00:20:49] Speaker 02:
in the defendant using subpoena power to get the phone records?

[00:20:55] Speaker 02:
I mean, why?

[00:20:56] Speaker 03:
Not to my knowledge.

[00:20:58] Speaker 03:
I mean, they had subpoena power.

[00:20:59] Speaker 03:
I mean, they had notice.

[00:21:00] Speaker 03:
And the government turned over all of Kazi's, I believe, all of Kazi's grand jury testimony, all of the MOIs from Kazi's meetings with the government.

[00:21:09] Speaker 03:
So the defense had that information.

[00:21:11] Speaker 03:
And none of that referenced Garcia at all.

[00:21:16] Speaker 03:
So the first part, the district court found that the government did not suppress Kazi's cell phone because the government did not have that, was in the possession of a third party witness.

[00:21:25] Speaker 03:
The government did not have that evidence.

[00:21:27] Speaker 03:
And then the court's second finding, so Kazi's lawsuit alleges that either a law enforcement agent or someone impersonating a law enforcement agent assisted Garcia with the fraud.

[00:21:41] Speaker 03:
And so the defendant argued that that meant that the LA Best investigation, which was the state federal task force based in California, must have known about the transactions between Kazi and Garcia.

[00:21:55] Speaker 03:
And the district court's finding there was that even if an LA Best agent had been aware of these transactions, which we would submit there's no credible evidence that they were aware of those transactions, the LA Best

[00:22:09] Speaker 03:
task force was not part of the prosecution team in this case.

[00:22:12] Speaker 00:
Let's assume that that particular issue I have some doubts about.

[00:22:18] Speaker 00:
Because we have case law that says that when you are working in a team on an investigation, every member of the team is presumed to have the information of every other member.

[00:22:31] Speaker 00:
So I'm not completely sure you're solid on that.

[00:22:34] Speaker 00:
But what was the findings by the court about what

[00:22:38] Speaker 00:
what the LA Best people even knew.

[00:22:41] Speaker 03:
So if I remember correctly, I'm not sure that the court made a finding.

[00:22:46] Speaker 03:
She sort of said even assuming, because again, the only allegation was that either an LA Best agent or someone impersonating an LA Best agent was involved.

[00:22:54] Speaker 03:
So she said even assuming there was an LA Best agent involved, she declined to impute that knowledge to the government.

[00:23:01] Speaker 02:
But the court did make a finding that the LA best was not a part of this prosecution.

[00:23:06] Speaker 02:
Correct.

[00:23:06] Speaker 03:
The court found that they were separate teams.

[00:23:08] Speaker 03:
And that finding was made earlier on in the litigation pre-trial.

[00:23:11] Speaker 00:
So is that finding that they weren't part of the organizations, is that a challenge to your own appeal?

[00:23:19] Speaker 03:
I think to the extent, I think for this issue, I think the defense would argue that

[00:23:29] Speaker 03:
for this issue, if LA Best were aware.

[00:23:31] Speaker 03:
But I would also point out to the court that Santiago Garcia, I think the court can take judicial notice of this fact, has now been indicted on charges of wire fraud and impersonating a federal agent, which suggests that law enforcement was not involved in these fraudulent transactions between Garcia and Qazi.

[00:23:49] Speaker 00:
Does that connect you to the record in this case, or is that separate?

[00:23:51] Speaker 03:
So it was based on the transactions between Qazi and Garcia.

[00:23:55] Speaker 00:
But all that happened after this case?

[00:23:59] Speaker 00:
Correct.

[00:23:59] Speaker 00:
He was indicted in January of 2024.

[00:24:01] Speaker 00:
I'm not sure we can reach that one and draw it back.

[00:24:07] Speaker 00:
I don't know how closely these two groups really worked together.

[00:24:17] Speaker 00:
I know that in one of the briefs, there was a long recitation of all the things that LA BEST did to help

[00:24:24] Speaker 00:
the prosecutors here in Utah.

[00:24:27] Speaker 00:
They said, we were at depositions.

[00:24:29] Speaker 00:
We participated in depositions.

[00:24:31] Speaker 00:
We turned this record over.

[00:24:33] Speaker 00:
We did this, that, and the other thing.

[00:24:35] Speaker 00:
You remember that couple of pages where that long litany occurred.

[00:24:40] Speaker 00:
Yes.

[00:24:41] Speaker 00:
Why isn't that enough to show that they really were cooperative and working together?

[00:24:48] Speaker 03:
Well, the district court's order

[00:24:51] Speaker 03:
on that issue, finding that they were not part of the same prosecution team, found that there was no coordination.

[00:24:57] Speaker 03:
There was some sharing of information after the fact, but there was no coordination.

[00:25:04] Speaker 03:
So like after interviews had occurred.

[00:25:05] Speaker 00:
Yeah, but not after the trial was over.

[00:25:08] Speaker 00:
No, no, no.

[00:25:08] Speaker 00:
Not after the trial.

[00:25:10] Speaker 03:
But they weren't cooperating.

[00:25:11] Speaker 03:
They weren't cooperating and conducting joint interviews.

[00:25:14] Speaker 03:
They weren't coordinating their efforts.

[00:25:15] Speaker 03:
These were separate investigations.

[00:25:17] Speaker 03:
The prosecution team in this case had to get permission from the other team in order to get that evidence.

[00:25:23] Speaker 03:
But I would submit to the court that you don't need to reach this question regarding LA Best because the district court correctly found that this evidence was not material.

[00:25:33] Speaker 00:
That seems a more secure approach.

[00:25:39] Speaker 00:
The district court, the one that heard the case, made that finding.

[00:25:43] Speaker 03:
Correct.

[00:25:44] Speaker 00:
Correct.

[00:25:44] Speaker 00:
And it's really only for impeachment evidence.

[00:25:48] Speaker 00:
And there are a lot of arguments that weave in and out that suggest it would not have made a difference.

[00:25:56] Speaker 00:
But we have a finding by the district court that it wouldn't have made a difference.

[00:25:59] Speaker 00:
Correct.

[00:25:59] Speaker 00:
And you would have to say that that was clearly

[00:26:02] Speaker 00:
erroneous.

[00:26:03] Speaker 00:
Correct.

[00:26:04] Speaker 00:
And I think that is a difficult call.

[00:26:07] Speaker 00:
That to me seems to be your stronger argument.

[00:26:10] Speaker 03:
Well, and I would submit that the record amply supports the district court's finding that the evidence was not material.

[00:26:17] Speaker 03:
Kazi's testimony regarding these transactions was fully corroborated by documentary evidence, by bank records, by the testimony of Jacob and Isaiah Kingston about how the money moved.

[00:26:29] Speaker 03:
And thus his credibility, because of this corroboration, his credibility was less crucial to the government.

[00:26:36] Speaker 03:
In addition, he was thoroughly impeached with his recantation of his grand jury testimony, the fact that he had favorably settled a $135 million civil tax matter with the IRS shortly before trial, and the fact that he still owed $8 million on this loan that occurred, this $11.2 million loan.

[00:26:57] Speaker 03:
and had ceased making payments.

[00:27:00] Speaker 03:
So all of that fully supports the district court's finding that this would have been cumulative impeachment material that would not have created a reasonable probability of a different result.

[00:27:12] Speaker 02:
What was the evidence that was the foundation for the district court's findings?

[00:27:17] Speaker 02:
And what I'm getting at, I still didn't really hear an answer to my question as to what was the predicate when in the brief the government asserts that it didn't know about the Garcia lawsuit until after it got the brief.

[00:27:34] Speaker 02:
Is there anything in the record beyond the statement that was in the appellate brief that would tell me that that in fact is the case?

[00:27:43] Speaker 03:
So the district court sort of assumed, but the only evidence showing that the government knew about these transactions was the allegation in the Kazi lawsuit

[00:27:55] Speaker 03:
that somebody who was either a law enforcement agent or was impersonating a law enforcement agent was involved in the fraud.

[00:28:01] Speaker 03:
And this was consistent with Garcia's practice of saying that he had connections.

[00:28:06] Speaker 03:
He defrauded the Kingstons in a similar scheme, saying that he had high level connections who could stop the prosecution of the Kingstons.

[00:28:16] Speaker 03:
And so I would submit there's no credible evidence that the government did know.

[00:28:20] Speaker 03:
There's an allegation that a law enforcement agent

[00:28:24] Speaker 03:
was involved in these transactions that defrauded Causey of $3 million based on these purchases of discounted, forfeited assets.

[00:28:33] Speaker 03:
But there's nothing showing that a government agent actually knew or was involved in these transactions.

[00:28:39] Speaker 02:
And the burden is on the defendant in this context, right?

[00:28:42] Speaker 02:
Or is it not?

[00:28:44] Speaker 03:
I believe it is based on the district court's finding that there was no suppression.

[00:28:50] Speaker 00:
Was the LA best part of an official

[00:28:55] Speaker 00:
A joint task force with the Utah prosecutors.

[00:28:58] Speaker 00:
Was there an official, when a federal and a state group cooperate, usually there's some document or some official thing that ties them together.

[00:29:09] Speaker 00:
No.

[00:29:10] Speaker 00:
Anything official about that from the LA BEST and Utah?

[00:29:15] Speaker 03:
No.

[00:29:16] Speaker 03:
So the LA BEST was a joint federal state task force, which primary.

[00:29:20] Speaker 00:
A joint federal.

[00:29:21] Speaker 00:
was for possible prosecutions in LA.

[00:29:27] Speaker 00:
Isn't that right?

[00:29:28] Speaker 03:
Correct.

[00:29:29] Speaker 03:
And primarily involved Homeland Security agents.

[00:29:33] Speaker 00:
And that agreement was between the state and federal people there in LA.

[00:29:39] Speaker 00:
Correct.

[00:29:40] Speaker 00:
When they say, well, we've got information now because there's a common defendant, Darman, that comes back and forth across LA to Utah, we'll give you some information.

[00:29:49] Speaker 00:
But was there any new solid agreement involving the prosecutors in Utah?

[00:29:56] Speaker 03:
There was no evidence of an agreement or of coordination between the tax prosecutors and the US Attorney's Office in Utah and the LA BEST organization.

[00:30:08] Speaker 00:
We have some information.

[00:30:10] Speaker 03:
Well, so the letter that was sent to defendant pretrial by the government said, we are aware of other investigations that have been looking into the defendant, including, and there were a number of different investigations, and one of them was LA Best.

[00:30:24] Speaker 03:
And it represented to the defendant, we have requested from these other investigations evidence that is relevant to this case.

[00:30:33] Speaker 03:
All evidence that was provided pursuant to that request was turned over to defense counsel.

[00:30:37] Speaker 00:
But there was no official joint task force between the other guys?

[00:30:40] Speaker 00:
No.

[00:30:40] Speaker 00:
There's no evidence of a formal agreement between the two.

[00:30:43] Speaker 00:
I'm satisfied.

[00:30:44] Speaker 00:
Thank you.

[00:30:46] Speaker 03:
We ask the court to affirm.

[00:30:53] Speaker 01:
I just want to stress that it's the juror's belief

[00:30:56] Speaker 01:
that Garagos represented Jackson.

[00:30:59] Speaker 01:
That's critical here, not the question of whether he actually did or did not.

[00:31:04] Speaker 01:
And the security officer said that he overheard the jurors, as did Juror 16, talk about the fact that, in fact, Garagos did represent Michael Jackson.

[00:31:14] Speaker 01:
The government said that Juror 6 did not know this, but the court security officer specifically said that Jurors 6 and 3 said, quote,

[00:31:26] Speaker 01:
He is the one that got Jackson off.

[00:31:29] Speaker 01:
And that's at volume 27, pages 6,700 to 6,704 and 6,706.

[00:31:36] Speaker 02:
And the government just alluded to the fact that in the instructions of the court, it specifically indicated that Garagos didn't represent any of the people listed on that sheet.

[00:31:47] Speaker 02:
I mean, what are we supposed to do with that?

[00:31:49] Speaker 02:
Aren't we supposed to presume that the jurors believe what the court said?

[00:31:53] Speaker 01:
Again, I think this is one of those circumstances, one of those unique cases where the prejudice arising from the jurors engaging in these discussions in a group.

[00:32:06] Speaker 02:
Okay.

[00:32:06] Speaker 02:
You accepted the fact that Chathandra doesn't work.

[00:32:10] Speaker 02:
Well then, what unique case can you point us to that is more like your case that would allow us to say this does fit into that box where instructions won't cut it?

[00:32:22] Speaker 01:
I think, again, I would look to this Court's decision in Gonzalez-Thomas that talked about implied bias, because I think that's what we're talking about here.

[00:32:33] Speaker 01:
I also want to circle back briefly to this Court's decision in Lawrence, where the extraneous information was not something specifically about the facts of that case, but like this case, it was a pamphlet on jury nullification.

[00:32:47] Speaker 01:
So it had to do with the juror process and deliberations

[00:32:51] Speaker 01:
And in that case, this court treated that pamphlet as extraneous information.

[00:32:58] Speaker 01:
I also just want to touch briefly, if I can.

[00:33:01] Speaker 01:
I see that I'm over.

[00:33:03] Speaker 01:
The judge found that juror six was truthful and forthcoming.

[00:33:07] Speaker 01:
But I think the court has to look at the judge's contemporaneous remarks immediately after interviewing juror six, where the judge said juror six was like a cat on a hot tin roof.

[00:33:20] Speaker 01:
She squirmed, she looked at the ground, she shifted, she mumbled, and then went on to say that her body language was, quote, something to behold.

[00:33:31] Speaker 01:
It was the definition of a guilty conscience.

[00:33:34] Speaker 01:
So how does the judge, immediately after interviewing jury six and making those remarks, then turn around to support the order denying that anything happened that would invalidate the seven and a half week jury trial

[00:33:50] Speaker 01:
and say that Juror 6 was forthcoming and was truthful.

[00:33:53] Speaker 02:
Because the judge explicitly said that it relied upon certain assumptions that turned out to be wrong.

[00:33:59] Speaker 02:
Isn't that, in fact, what the court said on the record?

[00:34:02] Speaker 01:
Except that I believe that's true.

[00:34:04] Speaker 02:
Well, that gives us an explanation for why the court would make the findings it did, right?

[00:34:09] Speaker 01:
But there was nothing incorrect about the fact that Juror 6 was researching these cases

[00:34:18] Speaker 01:
and that the jurors were collectively talking about Garagos's representation of Jackson.

[00:34:24] Speaker 01:
If I can just touch on one other... I would just like the court to focus on the issue concerning the expert testimony here.

[00:34:37] Speaker 01:
Clearly,

[00:34:38] Speaker 01:
Washburn was a critical witness.

[00:34:40] Speaker 01:
He was the one they relied on to connect the financial transactions to the specified unlawful activities in Count 1.

[00:34:49] Speaker 01:
And he gave opinion testimony regarding commingling of funds, regarding cycling funds and tracing funds that was clearly expert based on his education as an accountant.

[00:35:04] Speaker 01:
and his training as an IRS agent and should not have been allowed to testify to those things.

[00:35:22] Speaker 00:
You are bringing up a brand new position that now the appellee doesn't have the chance to respond to.

[00:35:29] Speaker 01:
I understand, Your Honor.

[00:35:30] Speaker 01:
All I'm trying to do is point the court to that argument in our brief.

[00:35:35] Speaker 01:
I apologize for that, and thank you for your time.

[00:35:40] Speaker 02:
Government, if you want 30 seconds to talk about the one argument regarding expert testimony alleged in Agent Waspburn, have at it.

[00:35:51] Speaker 03:
I'll be brief, Your Honor.

[00:35:52] Speaker 03:
Agent Washburn's testimony was factual summary testimony.

[00:35:57] Speaker 03:
The district court admitted the summary exhibits, which were provided to the defendant well in advance.

[00:36:03] Speaker 03:
And those summary exhibits showed the movement of money from the treasury checks that were issued to Washakie in response to the fraudulent tax credit claims and how that money moved through various bank accounts.

[00:36:17] Speaker 03:
The fact that the treasury checks were proceeds was not really in dispute at trial.

[00:36:23] Speaker 03:
The question was, how did the money move?

[00:36:26] Speaker 03:
And that was factual summary testimony that was consistent with this court's precedents upholding the use of summaries under Federal Rule of Evidence 1006.

[00:36:34] Speaker 00:
As long as no special expertise is required.

[00:36:38] Speaker 03:
Correct.

[00:36:38] Speaker 00:
I am a little troubled there.

[00:36:42] Speaker 00:
I mean, this was fairly sophisticated tracing that he was using.

[00:36:47] Speaker 03:
Well, I mean, his testimony on direct was that he had reviewed the records from these 55 different bank accounts and traced the movement of the money.

[00:36:56] Speaker 03:
And for many of the accounts, it was not particularly sophisticated tracing.

[00:37:00] Speaker 00:
It was just- No, for some of it wasn't, but it strikes me that some of it was.

[00:37:08] Speaker 03:
This court contemplates that when there's voluminous evidence, and rule 1006 contemplates that there can be calculations involved.

[00:37:17] Speaker 03:
And Agent Washburn clearly explained how those summaries were compiled and was cross-examined at length about that.

[00:37:24] Speaker 03:
And finally, the evidence of money laundering was also overwhelming.

[00:37:29] Speaker 03:
So any error was harmless.

[00:37:31] Speaker 02:
Thank you, counsel.

[00:37:32] Speaker 02:
Thank you for your arguments, counsel.

[00:37:35] Speaker 02:
The case is submitted.