[00:00:00] Speaker 03:
All right, our next argument for today is 24-2276, Elias v. Department of Transportation. Ms.

[00:00:08] Speaker 03:
Bellinger, please proceed.

[00:00:09] Speaker 05:
Thank you, Your Honors.

[00:00:12] Speaker 05:
So to begin, the issue is regarding whether or not it was cumulative to call David Cisneros.

[00:00:18] Speaker 04:
And I think, first of all, we need to look at cumulative as to... Before you get into the meat of this, can I just ask you, you're not challenging the underlying merits of the removal, right? This is just about the procedural, what you say, procedural errors and how this case was proceeded. But there's no challenge to the underlying conclusions, right? Not before you, Your Honor, no.

[00:00:42] Speaker 04:
And so what kind of relief are you seeking here?

[00:00:46] Speaker 05:
A remand new trial.

[00:00:48] Speaker 05:
Just to allow the witness to appear?

[00:00:50] Speaker 05:
To allow the witness to appear to testify. I mean, I do think it's important because the witness was going to be testifying particularly about witness tampering and specifically being dissuaded by Mr. Loera and Mr. Urias from testifying. But the witness was not.

[00:01:08] Speaker 01:
a percipient witness to anything involved in this case. But I disagree with that, Your Honor. I think he was a percipient witness to how the entire office operated. I think he was a percipient witness. Well, but that's not really being a percipient witness for the conduct that's alleged here. The falsification with respect to the inspection and the like, he didn't have anything to do with that. He was just going to provide his view on the character of the people that worked in the office, right?

[00:01:35] Speaker 05:
I think that is a correct assessment, but also it was about the way that Mr. Urias was running that office and kind of set it up as his own personal fiefdom.

[00:01:45] Speaker 01:
And the idea... Wasn't that going to be the testimony of your client? So what's this additional witness doing?

[00:01:54] Speaker 05:
Well, again, he's testifying as to specifically the points of...

[00:02:03] Speaker 05:
being dissuaded from testifying in the first place, A, but also it's not cumulative, I guess is the point that I'd like to make. It's not cumulative to bring in this additional evidence that when the entire case is decided based on my client's credibility, I should have some opportunity to bring in some evidence of his credibility.

[00:02:25] Speaker 01:
In a traditional trial, if you said to the trial judge, I have five character witnesses that I want to bring in, while they're all going to say the same thing about the character of whatever party is involved, the trial judge will be perfectly entitled to say, we don't need all these character witnesses to say the same thing. So why here is it an abuse of discretion for the judge to say, you know, we hear this testimony. We don't need an additional witness to just say, I agree.

[00:02:56] Speaker 05:
Well, Your Honor, because there's no jury here to inflame or anything like that. This is just a waste of time is the abuse of discretion. That's the cumulative standard that they're using is it's just simply a waste of time.

[00:03:11] Speaker 01:
In some ways, isn't it a stronger argument that the trier of fact doesn't need to hear this additional testimony?

[00:03:18] Speaker 05:
But the trier of fact in this case decided entirely based on how credible the witnesses were. And it was entirely based on the credibility, particularly of Mr. Urias and Mr. Elias.

[00:03:33] Speaker 05:
And on top of that, Mr. Elias wasn't going to be testifying to Mr. Loera's credibility, who was also a witness, but Mr. Loera was the one that went to David Cisneros and started talking to him about his potential being a witness in that case.

[00:03:51] Speaker 04:
So you want to explain, and I would hope you would rely on whatever proffer was, because the judge made his decision based on the proffer of what he was going to testify to, how that relates to dispelling or rebutting the charges against your client in this case?

[00:04:12] Speaker 05:
The reason being is that the charges against my client were effectively that he lied, right? That he lied in making the Aspen report and saying that he did the Aspen, because he did the Aspen report right outside of the office, right? But the thing is, is that Mr. Elias was testifying that that was actually kind of a regular thing, is my understanding. And that Mr. Urias simply picked this as the opportunity to

[00:04:41] Speaker 04:
What I didn't see, and the record is kind of all over the place. It's not very clear to me that this is put together. But I didn't see anything in the proper that related to what he was required to do, the reason he was fired for not doing it. was not the regular practice in the office, and that everyone or a lot of people or other people had done what your client did in terms of the inspections and so forth. Maybe there's something missing for the record, but I didn't see anything in the proffer or discussion of what these witnesses, the witness that was excluded would testify to, had anything to do with those issues.

[00:05:22] Speaker 04:
So you want me to show me something in the record?

[00:05:24] Speaker 03:
Before you answer that, can I just add to it that At the hearing, I don't know if it was you that argued it, but wasn't it argued that he would testify to this? It was not in the proffer, but at the hearing, wasn't it argued that Mr. Cisneros had information about how they normally did these investigations and that would be part of his testimony?

[00:05:48] Speaker 05:
So there was actually two proffers, and then one of the proffers we kind of had a mini-argument about it on there. And then that was discussed, I believe, during that second proffer in that discussion, I believe.

[00:06:01] Speaker 04:
Can we talk about the record? I mean, can you point me to what in the record we're talking about? The only discussion of the proffer that I could find, or among them, is in the AJ and his rejection, his disgust, bribing the proffer. I think on page 274, appendix 274 and 275, I guess. All right.

[00:06:30] Speaker 03:
Well, so you didn't include this in the appendix, but we got the whole record in the case. And I'm going to read what you wrote to try and help you out.

[00:06:39] Speaker 03:
Though Mr. Cisneros was not a witness to either the inspection or the conversation with Mr. Urias, he has been working alongside Mr. Urias for over a decade and is able to speak to the character of Mr. Urias, the relationship between Mr. Elias and Mr. Urias, how it had evolved over Mr. Urias' years of service, and here's the critical part, and the general office practices and training regarding investigations. So wouldn't that, isn't that what you're looking for? Where is that from?

[00:07:06] Speaker 03:
It's not in the record. They didn't submit it in the appendix, but it is in the record.

[00:07:12] Speaker 03:
It's their brief to the lower court on why he should be allowed to testify.

[00:07:16] Speaker 05:
Okay. And that's in the proper itself? No.

[00:07:22] Speaker 02:
Your petition for review.

[00:07:23] Speaker 05:
Was it in the blue brief, too?

[00:07:26] Speaker 02:
No, it's nowhere. We've got the record.

[00:07:29] Speaker 05:
So what we have in the record is the proffer itself, is the brief that I wrote to the LGA. We don't have a record of that mini hearing that we had on that. But that was what I believe.

[00:07:43] Speaker 03:
The mini hearing you had on that, there's an audio tape. We listened to it. So it's in the record. I see. An audio tape, right? I see. Am I missing something? That may be my mistake. Brad, is that right?

[00:07:54] Speaker 03:
Audio tape. Was it an audio tape of the hearing that you listened to? You had the audio tape.

[00:07:59] Speaker 03:
Yes. OK. Thank you. Go ahead.

[00:08:02] Speaker 05:
Was that for the main hearing or was it for the hearing on the proffer?

[00:08:04] Speaker 03:
Brad, what hearing was it?

[00:08:07] Speaker 03:
OK.

[00:08:08] Speaker 05:
I don't believe that there is a recording for the mini hearing on the proffer. It was very brief. It was only about five minutes long. And that was when that proffer was made is my understanding. But again, this was quite a long time ago.

[00:08:23] Speaker 03:
But I mean, I think these questions are all getting to really the heart of the issue.

[00:08:28] Speaker 03:
I understand your general argument about Mr. Elias should have an opportunity to have a credibility witness. He had zero credibility witnesses. He was not allowed to bring a single witness. And the A.J. decided this whole case based on his credibility versus Mr. Rice's credibility because Mr. Elias's intent is a critical element of the charges. So I get that argument, but that's only true if your witness was about to give testimony that would really – shed doubt on the credibility of one of the witnesses with regard to a key fact, because otherwise it's just harmless error.

[00:09:03] Speaker 03:
Like just saying he's a good guy and there's a deteriorated relationship doesn't really tell me about whether he intended to, for example, falsify documents. He submitted an inspection report claiming he had done portions of an inspection. There's no question he didn't do.

[00:09:19] Speaker 03:
So did he intend to deceive? And how would Mr. Cisneros have shed any light on what Mr. Elias's intentions were with regard to that?

[00:09:33] Speaker 05:
That is a good question, Your Honor.

[00:09:46] Speaker 05:
I believe it all comes back to Mr. Urias' intent more so than Mr. Elias' intent, because Mr. Urias is the one who is out there.

[00:09:56] Speaker 01:
No, isn't the problem with that, and that's how I understood... Ms. Cisneros was going to testify. He was going to not testify as to the character of Elias. He was going to provide negative testimony with respect to the character of Mr. Urias, the supervisor, right? That is correct, Your Honor. Okay. So that being the case, following up on Chief Judge Moore's question, The central issue here is whether or not Mr. Elias falsified or didn't falsify. How is Cisneros' testimony going to have anything to do with that question?

[00:10:28] Speaker 01:
At best, it's going to be saying, you can't believe anything Mr. Urias says. Well, you don't even have to here because there isn't any dispute, is there, that Mr. Elias falsified the inspection report.

[00:10:41] Speaker 05:
The issue was whether or not Mr. Elias not just falsified the inspection report, but there was also the lack of candor charge as well from when Mr. Elias was speaking to Mr. Urias. And that goes directly to that conversation. While it doesn't go necessarily to the falsification of the document, it does go to why the document goes to the conversation.

[00:11:03] Speaker 01:
It doesn't go to falsification in and of itself enough for termination.

[00:11:10] Speaker 05:
But that's not what the government relied on. That's not what their case was about. Their case was about the lack of candor on top of the falsification of the documents.

[00:11:18] Speaker 03:
So you're saying we'd have to, if we only sustained one charge, we'd have to remand for the government to do a new Douglas Factor assessment of the penalty of removal to ensure that it is adequate?

[00:11:29] Speaker 04:
Yes, Your Honor, exactly. Okay, I just need my recollection refreshed, of course, on this record. So you're saying there are two pieces to it. And the second piece was the conversation that the two had. Yes. And what's the daylight between what they were saying that would require a third party who wasn't present at the conversation, right?

[00:11:56] Speaker 05:
So Mr. Urias goes to Mr. Elias and he says, oh, and again, my understanding is. What's the charge in the case? Lack of candor and falsification of documents. Okay. And lack of candor is described as hot.

[00:12:14] Speaker 05:
I'd like to be specific with your honors about this. I appreciate that.

[00:12:22] Speaker 05:
Bear with me a moment.

[00:12:25] Speaker 05:
I may need to pull this up in rebuttal.

[00:12:35] Speaker 04:
Well, I've got it at Appendix 27. So the specification says when I talk to you, well, anyway, you can read it for yourself. But I'm just trying to glean from that what the essence of the lack of candor was, the dispute between who said what in the specification that was charged.

[00:13:00] Speaker 05:
specifically, Mr. Urias wrote down, when I talked to you on May 31, 2019, you stated that you did a walk-around and inspection on the motor coach. During our discussion, you repeatedly stated you did not need to tell anyone that you were doing an inspection, did not acknowledge completing the Aspen report on a vehicle that was present. And your client said that was all not true?

[00:13:20] Speaker 05:
It was, I don't believe he said it was not true necessarily, but the The whole you did not need to tell anyone that you were doing an inspection, that was something that Mr. Urias really harped on as being very important. And when Mr. Elias is saying, you know, I don't need to tell anybody when I do an inspection because that's just a regular part of his job is what he's trying to say. It's not a lack of candor. It's a breakdown in communication. And that's one thing Mr. Cisneros certainly would have testified to.

[00:13:49] Speaker 04:
And he would have a basis for knowing that.

[00:13:53] Speaker 04:
not being part of the conversation, but because he was aware of the general atmosphere in the office.

[00:13:59] Speaker 05:
And the dynamic between the two particularly. The idea was, the idea behind the charge in the first place was that Mr. Elias was not being candid with Mr. Urias, but that wasn't the case. It was just simply that they had a serious breakdown of communication.

[00:14:17] Speaker 03:
Okay, why don't we save your remaining time for rebuttal. Let's hear from Mr. Smith. Thank you.

[00:14:35] Speaker 00:
May it please the court, neither of the discovery rulings issued by the MSPB in this case constitute an abuse of discretion. And even if it had, the uncontroverted and weight of the evidence more than establishes that this would have been harmless error in this instance because Mr. Elias falsified documents and did not engage in a candorous conversation with his supervisor following the false inspection report.

[00:15:05] Speaker 00:
At the outset, I'll start with Mr. Cisneros. I think the court's questions correctly point out that some of the topics that are being discussed here were not raised in the actual proffer.

[00:15:18] Speaker 00:
I would direct your court's attention to Appendix 5 and then Appendix 11 and 12, which is the renewed discussion of the proffer. And the discussion regarding the general candor and practices of the office just was not a portion of that proffer.

[00:15:35] Speaker 00:
Further, It was cumulative in that Mr. Urias and Mr. Elias both took the stand.

[00:15:42] Speaker 00:
Mr. Elias did discuss his relationship with the supervisor, but never testified regarding the practices of the office or ongoing.

[00:15:51] Speaker 00:
Frankly, I'm not sure how this would tie into the fact that a false inspection report was filed.

[00:15:56] Speaker 04:
We're talking about the lack of candor, so why don't you focus on that? Certainly. Firstly, let me ask you a prep, because I've seen cases go different ways. Sometimes the agency that's The defendant here will make sure that their supervisor on the stand says, the signing official says, if there's several specifications, I would have taken at the same action irrespective, even if it was just on one. Is there any of that in the record?

[00:16:22] Speaker 00:
I believe that was in the government's filing regarding the proposed removal, but I do not believe that came up during the testimony, Your Honor. Okay. But I do want to draw the attention to the testimony of Mr. Urias and Elias at the hearing. Neither – the relationship between Mr. Elias and Mr. Urias was discussed at length in his direct examination. However, there was no discussion of – surrounding events that may have justified the lack of candor given in the discussion. But importantly, when Mr. Urias, the supervisor, took the stand, he was subject to approximately three questions on cross, none of which delved into the substance of this discussion or the practices of the office.

[00:17:06] Speaker 00:
So frankly, Your Honor, having determined not to ask those questions at the cross is difficult to now argue that somehow the testimony would not have been cumulative because that that route of discovery had been abandoned during the hearing. So it's difficult for us to determine now that we should basically be allowed a second bite at the apple by a witness that had previously been excluded based on two proffers.

[00:17:31] Speaker 00:
And the subject of both proffers not appearing in the testimony that we're hearing now... Is it your position that the...

[00:17:40] Speaker 01:
The situation in the office is irrelevant? Precisely, Your Honor.

[00:17:44] Speaker 00:
I'm not sure how the situation in the office could justify the submission of a false report. I mean, the heart of Mr. Elias's duties is to submit inspections of large motor coaches and large trucks on the road.

[00:17:58] Speaker 03:
Let's just say that I agree with you on this part. But what about, I mean, I don't see where the government did say on either of these two charges the same penalty would have been reached. And on candor, Mr. Elias testified, you can see it at page A22 of this record, when he was complaining about why, or trying to explain how he didn't have a lack of candor, he says that Urias didn't let me finish. like his answers.

[00:18:28] Speaker 03:
He's talking about how in the conversation he had with Urias, when Urias kept asking him questions about, well, no one saw you do this. Mr. Elias's testimony was Mr. Urias didn't let me finish my answers. So how wouldn't it be relevant then if there's someone that can testify to the dynamic between these two men in the office, wouldn't that possibly have shed light on Mr. Elias's credibility when he's trying to explain the the lack of candor allegation?

[00:19:00] Speaker 00:
Your Honor, I'll have to take you on your word regarding... No, no, no. I'm sorry. I wanted to address the first part of your question with regards to the competing whether either charge individually would have justified removal.

[00:19:14] Speaker 00:
I admittedly do not have that site handy, so I will take your word at that.

[00:19:17] Speaker 03:
But you don't have to take my word. I didn't see it. I didn't see anything in this record where the government... You know, the government, like Judge Proce, the government often... has, you know, basically there are two charges and then they conclude in the actual removal, they'll say either charge is sufficient to sustain removal. I don't see that here in the removal.

[00:19:37] Speaker 00:
That may be true, Your Honor. I believe that argument was offered at some point, but I take you. As for the Appendix 22 issue, I do believe that the credibility of the witness as judged by the trial court certainly addresses the issues that you have regarding his inability to finish. I would also argue, Your Honor...

[00:19:54] Speaker 03:
Wait, the crowd court said, I find Mr. Elias more credible than Mr. Urias. I don't know how to say these names.

[00:20:02] Speaker 00:
Respectfully, Your Honor, it went further than that. He said that he found Mr. Elias's testimony not credible as to whether even any inspection had occurred whatsoever and his candor.

[00:20:12] Speaker 03:
Okay, but whether any inspection occurred is different from the lack of candor charge. Lack of candor charge is based on a single conversation. We agree.

[00:20:21] Speaker 00:
We agree, Your Honor.

[00:20:23] Speaker 03:
And in that single conversation between these two men, Mr. Urias is asking him some really not very nailed down, clear questions based on this record. Mr. Urias is like, well, nobody saw you do an inspection. Why nobody see you do an inspection? Well, that's not, did you do the inspection? That's not, where did you do the inspection? That's not, did you look at the brakes? He clearly is not a lawyer, right? So he didn't know how to ask really precise and direct questions. And Mr. Elias, fair enough. I'll tell you, I don't think he sounds super credible.

[00:20:54] Speaker 03:
And I read a testimony. He's all over the place. But what he says is, but Urias would not let me finish my answers. That's in the AJ's opinion. And so if that's true, why doesn't the extra witness who does have information about the nature of the relationship between these two men, why can't that possibly? Suppose Mr. Cisneros came in and said, Urias is a bully. He asks you crazy questions and doesn't wait for you to answer all the time.

[00:21:24] Speaker 03:
He is a terror to the staff. I'm not saying that's what Mr. Alias was going to testify to. But what if he did? Don't you think that could have affected the judge in terms of his assessment of the credibility on just whether or not Mr. Alias was exhibiting a lack of candor in that conversation?

[00:21:45] Speaker 00:
Two points, Your Honor. Mr. Elias was asked at length during his direct testimony regarding that conversation and his relationship with Mr. Urias. So this was not some hidden fact that was not brought up in the trial. That came up during direct to Your Honor.

[00:21:58] Speaker 03:
But wait, Mr. Elias, you're judging the credibility between two people. If there's a third party who has witnessed interactions between these two people with regularity, you don't think that could influence the assessment of credibility between the two people?

[00:22:14] Speaker 00:
I think it could have. I think it was cumulative to the fact that the substance of this testimony had come out by Mr. Elias and then was not pursued on the cross.

[00:22:22] Speaker 03:
But it's credibility. Like, the substance of Mr. Elias' testimony came out, but then the judge said it wasn't credible. And you don't think that there's some third person that has witnessed these two bashing heads over and over again or one bullying the other? I don't know.

[00:22:37] Speaker 00:
No, I can see it may have made a difference as to... Certainly.

[00:22:40] Speaker 04:
Okay.

[00:22:42] Speaker 04:
On cross-examination, was Mr. Urias asked about whether he cut, he testified, Mr. Urias said, he cut me off and he wouldn't let me explain.

[00:22:54] Speaker 04:
Did was on cross-examination was Mr. Urias. I mean, he may have said, yes, I cut him off because and explained the circumstance.

[00:23:03] Speaker 00:
Was he asked that during that did not come up on cross-examination, Your Honor. But you do get to me to my second point, which is the substance as to the lack of candor was never a question. Right. During the second meeting.

[00:23:16] Speaker 00:
he had written, I inspected the brakes. When approached during the conversation, did you inspect the brakes? Mr. Elias never confessed. He never came forward and said, you're right. In fact, he doubled down with the language of, I don't have to tell you when I do an inspection report. So the very lack of candor charge here was premised on the fact that Mr. Elias never admitted during the conversation with Mr. Urias that the inspection had not taken place, that the inspection took place on the street outside the office instead of the scale as indicated in the report, that the truck was never present at the scaling facility on May 29th per the report, or that it had crossed from Mexico into the United States.

[00:24:02] Speaker 00:
There is no allegation in any of the testimony or in the argument of opposing counsel that those things actually happened. So while I agree that it may, a third-party witness arguably, and I would still argue and submit, Your Honor, that this would not be an abuse of discretion to not have additional testimony regarding these two individuals' relationship, when both testified at the hearing, the testimony was never going to rebut the lack of candor. And having – because that witness was not a subject to – it was not present for the conversation at issue, which led to the lack of candid charge, he was justifiably and in my opinion rightfully excluded from testifying.

[00:24:43] Speaker 00:
But in any regard – It was certainly not an abuse of discretion to prevent him from offering what was, at its very core, additional character evidence regarding these two individuals and their relationship, which frankly was not an issue in this hearing, nor was the lack of candor. I mean, the lack of candor was admitted conduct. So I'm not sure that the exclusion of a witness that would provide additional color, for lack of a better word, Your Honor—honors— would in fact be an abuse of discretion when the core of the charge, both the lack of candor charge and the falsified inspection report, are unrebutted admitted facts.

[00:25:24] Speaker 00:
Absent any further questions, I will give up the balance of my time.

[00:25:28] Speaker 03:
Okay.

[00:25:30] Speaker 00:
Thank you.

[00:25:30] Speaker 03:
Ms. Bellinger, you have a little bit of rebuttal time.

[00:25:40] Speaker 05:
I do want to clarify that the that on cross, that route of discovery wasn't abandoned. Just simply the fact was that he had no discovery to work with, as pointed out, and he also didn't have any witnesses on behalf. So, I mean, I felt that a cross would be a fool's errand at that point.

[00:25:57] Speaker 05:
As to the report itself, what I would say is that The entire basis for it was the fact that he did it on the street outside, not that it was a bad necessarily report, but it was the fact that he put the wrong place in the Aspen report itself. And the fact is, is that the way the office worked was that very often people would put things in the Aspen report, you know, different locations, things like that.

[00:26:29] Speaker 05:
And I believe that did come up during testimony and direct.

[00:26:31] Speaker 01:
I just want to clarify, are you still advancing the argument about the discovery extensions and the, The denial by the judge, or have you dropped that?

[00:26:44] Speaker 05:
I will submit to your opinion on that. But what I will say is that it was a combination of factors, Your Honor. It was the combination of factors that really made it impossible, I believe, for him to get a fair trial in this situation because he did not have access to his discovery. He didn't get a single witness on his behalf.

[00:27:03] Speaker 01:
And this was the only witness. What I'm specifically asking is I thought one of the issues that you thought warranted sending it back was that you were denied requests to extend discovery. Yes. I just want to know, is that something you're saying somehow standing alone it might not be enough, but it's somehow combined with the issues we've been talking about? Yes, Your Honor.

[00:27:29] Speaker 05:
I do believe that it is a combination of factors. It's not just the simple. It's not just one on its own.

[00:27:35] Speaker 03:
Okay, Ms. Bellinger, our time has run out. I thank both parties for their argument. This case is taken for submission. Thank you.