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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF WASHINGTON
UNITED STATES OF AMERICA, ))
Plaintiff, ) Nos. 13-CR-024-TOR-1) 13-CR-024-TOR-2
vs. ) 13-CR-024-TOR-3) 13-CR-024-TOR-4
RHONDA LEE FIRESTACK-HARVEY, ) 13-CR-024-TOR-5LARRY LESTER HARVEY, )MICHELLE LYNN GREGG, ) February 12, 2015ROLLAND MARK GREGG, ) Spokane, WashingtonJASON LEE ZUCKER, )
) Transcript of:) Pretrial Conference/Motions
Defendants. ) Hearing )
BEFORE THE HONORABLE THOMAS O. RICEUNITED STATES DISTRICT JUDGE
APPEARANCES:
For the Plaintiff: Earl A. HicksStephanie Van MarterAssistant United States AttorneysP.O. Box 1494Spokane, WA 99210-1494
For Defendant Jeffrey S. Niesen, Attorney at LawFirestack-Harvey: Jeffrey S. Niesen Law Office
1411 W. Pinehill RoadSpokane, WA 99218
Reported By: Debra Kinney Clark, RPR, CSRUnited States District CourthouseP.O. Box 700Spokane, WA 99210(509) 458-3433
Proceedings reported by mechanical stenography; transcriptproduced by computer-aided transcription.
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APPEARANCES (Continued):
For Defendant Harvey: Robert R. FischerFederal Defenders of EasternWashington and Idaho10 North Post, Suite 700Spokane, WA 99201
For Defendant M. Gregg: Bevan J. Maxey, Attorney at LawMaxey Law Offices1835 W. BroadwaySpokane, WA 99201
For Defendant R. Gregg: Phil Telfeyan, Attorney at LawEqual Justice Under Law916 G Street Northwest, Suite 701Washington, DC 20001
For Defendant Zucker: Frank L. Cikutovich, Attorney at LawStiley & Cikutovich, PLLC1403 West BroadwaySpokane, WA 99201
Reported By: Debra Kinney Clark, RPR, CSRUnited States District CourthouseP.O. Box 700Spokane, WA 99210(509) 458-3433
Proceedings reported by mechanical stenography; transcriptproduced by computer-aided transcription.
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(February 12, 2015; 11:02 a.m.)
THE COURTROOM DEPUTY: The matter before the court is
United States of America v. Rhonda Lee Firestack-Harvey,
Larry Lester Harvey, Michelle Lynn Gregg, Rolland Mark Gregg,
and Jason Lee Zucker, Case No. 13-CR-0024-TOR, Defendant Nos. 1
through 5. Time set for pretrial conference and motion hearing.
Counsel, please state your presence for the court and
record, beginning with the plaintiff.
MR. HICKS: Your Honor, Earl Hicks is present on
behalf of the United States. Good morning, Your Honor.
THE COURT: Good morning.
MR. TELFEYAN: Good morning, Your Honor. My name is
Phil Telfeyan; and I represent Defendant Rolland Gregg.
THE COURT: Good morning to both of you.
MR. FISCHER: Bob Fischer, Your Honor, for
Mr. Larry Harvey. Good morning.
THE COURT: And good morning to both of you.
MR. MAXEY: Good morning, Your Honor. Bevan Maxey
here on behalf of Michelle Gregg, who is also present.
THE COURT: All right. Good morning to both of you.
MR. NIESEN: Good morning, Your Honor. Jeffrey Niesen
on behalf of Rhonda Firestack-Harvey, who is present.
THE COURT: Good morning to both of you.
MR. CIKUTOVICH: Good morning, Your Honor.
Frank Cikutovich. I represent Jason Zucker.
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THE COURT: And good morning to both of you.
Counsel, we have a number of motions presently pending
before the court at this pretrial conference. Trial in this
matter is set for February 23rd, and I note that the case has
been pending for quite some time.
To efficiently address these motions, rather than have
everyone jump up, back and forth, I'm going to go serially
through the counsel and ask you to speak as to any motion that
you'd like to speak on, realizing that full briefing has been
performed in all of these motions and the court has read the
file.
Mr. Hicks, I'll begin with you. Are there any motions you
would like addressed orally?
MR. HICKS: Yes, Your Honor. I would like to discuss
some of the responses that have been made.
The oral motion -- the 538 motion involving the new
statute -- Your Honor, that's a motion to dismiss. I would like
to address the notice of experts/701 information. We received
a -- just recently received a motion, in effect; and it seems
like it's to strike all of the testimony. So I want to address
that.
And we have a motion in limine, Your Honor, based on
Mr. Telfeyan talking openly in the press about jury
nullification issues, and that; and that's a motion in limine.
And although I know that the court had certain deadlines, that
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was something that just recently came up; and so we filed a
motion on that because it appeared that Mr. Telfeyan was going
to intentionally disregard court orders in this case. And we
wanted the court to be alert to that because this is a rule.
The law is what's important, not the personal opinions of
Mr. Telfeyan.
Do you want me to address my concerns, Your Honor, at this
particular point in time, or --
THE COURT: Well, only as to matters that haven't been
briefed --
MR. HICKS: Right.
THE COURT: -- realizing I've read the entire file.
I've read all the motions, all the responses, all the replies.
MR. HICKS: Yes.
THE COURT: I've read all the supporting
documentation. If there's some point you want to make as to any
particular motion, I'll hear from you now.
MR. HICKS: All right.
THE COURT: Otherwise I'll consider the motions
submitted.
MR. HICKS: All right. The one point that I want to
make now, Your Honor, is that there's a marijuana statute in the
state of Washington; and it is my position that in providing you
with information, which -- although the defendants are presumed
innocent, Your Honor -- I'm not claiming that they're guilty of
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any state or federal crime at this particular point in time,
because they're not. But in pointing that out, Your Honor, the
government's position is, is that they clearly are in violation
of the Medical Use of Cannabis Act in the state of Washington;
and they were. And as you're aware, that's based upon
documentation attached to my motion showing what the government
contends are sales records that were found in the Harvey
residence and on the Harvey computer.
Medical use of marijuana is defined. It's for the
exclusive use of the person. It doesn't authorize the
manufacture of between 173 to 190 pounds of marijuana and
records indicating close to at least $40,000 of sales of
marijuana. And Mr. Telfeyan believes and has indicated that
it's his position that, based upon 538, now, at this particular
point in time, that we cannot -- the federal government -- in
states that have medical marijuana laws, cannot prosecute cases
until the State has decided, until the person's convicted in
state court. That is such an incredible stretch that it's
absolutely beyond belief.
The other thing that I want to address, Your Honor, is the
701 motion. Now -- but, first, I did put the definition of
medical use of marijuana under the Washington statute. And then
I pointed out to the court why this wasn't medical use of
marijuana -- because you can't sell it.
I want to also point out to the court again: Dispensaries
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are illegal. So all of these arguments about taxing -- the
State of Washington does not tax medical marijuana. That's a
joke. So they're going to lose revenue. The State is going to
lose revenue because the federal government's involved. Those
things have previously been discussed with the court, but I want
to emphasize them.
And then I'm going to hold up, Your Honor, a cell phone.
And the reason I'm going to hold up a cell phone is because when
I turn this on, what I can do is I can go to a calculator. I
can go to a calculator. And it's common for most people to have
calculators. Most people have calculators. And most people
have -- went to school. And I want to talk about the expert
testimony in this case.
The expert testimony -- we're claiming that it's not expert
testimony. We're not saying that it's expert testimony. If it
was going to be used as expert testimony or if the court feels
that it needs to be expert testimony, then what happens is it
goes through the qualifications of the person; and that would be
what he's expected to testified to. In the preamble of what we
put in there is that we don't believe that it's expert
testimony. Mr. Telfeyan obviously didn't read that. We believe
it's 701 evidence.
And let's talk about the drug records, and let's talk about
ounce, because -- we didn't respond to this because we didn't
have time to respond to it -- about ounce and about pounds. In
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discussing ounce and pounds -- my wife happens to be a
schoolteacher. And I said to her: When do students learn that
there are 16 ounces in a pound? Now, I know that on one
occasion defense attorneys had a hard time figuring out that
five charges were less than six charges. But students learn
that in the fourth grade in the state of Washington and have to
be proficient by state law on that by the fifth grade. Ounces
and pounds. All right? Apparently that's a concept that's
going to be used in this case, because when we examine the
records, which I have presented to the court, ounce and pounds
is very important, because when the officer takes his calculator
and when there's a heading that says quantity, O, he's going to
testify that that means ounce. The only quantity that we know
of, unit of measurement, that starts with O is ounce. And then
what he's going to tell you he did is that -- looking at that
record, he took those ounces there under those columns and he
divided it by 16. And then the column right next to it says EL.
And he believes that that's estimated pounds because -- I'll
give you an example. One of them says 48. And then next to it,
it says 3. You divide 48 by 16 ounces, and it ends up being
3 pounds. Then next to it, there's a record that says -- and
this is approximations -- I think it's a little bit off -- it
says $600.
You take three pounds. You divide that into $600. And
this is for people who -- there's no evidence whatsoever, no
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indication, that these people are involved in medical marijuana
or are authorized in any manner or fashion to possess marijuana.
And what happens is you determine that there are -- $200 per
pound is what they're paying trimming costs to people. Then
their records show that they paid over $38,000 in trimming
costs.
This is not expert testimony. This is something that you
could give a fifth grader a problem in and he would be able to
figure out. And it's not based upon learning that in law
enforcement. And besides, even if it was, he's entitled to say
what he has experienced and seen in his life, including law
enforcement. So this belief that the testimony of this fact
expert is absurd (sic). That response is absurd, because it's
that simple, Your Honor. And everything else in this case will
be that simple. The testimony will be based upon the officer's
observations. And if this court believes that it's expert
testimony, then we have his background. And then I would
suggest that that -- that particular point.
Now, the other thing is, is they have an expert who said
that the crop that was not harvested has no commercial value,
that there's no value to this crop. I don't have to rebut him
by an expert witness. I can leave that law enforcement officer
up and rebut him based upon his common experience in law
enforcement.
So, Your Honor, all I'm saying is that if you find that
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this expert notice is late and you bar the expert testimony,
that's fine with the United States, to bar the expert --
proposed expert testimony, because everything else is so simple.
It's human experience. Everybody who goes to the store know
(sic) what ounces and pounds are.
The scale that we have which we seized from their residence
only measures ounces and pounds. That's all it measures, with
the packaging material. That's all it measures. The marijuana
that we seized from their house -- it says one pound on it. The
drying racks that we took is the same product.
Now, I submitted to the court a record, a record of -- that
they had, where they kept track of sales up to a particular
point in time. These records were found on a computer, in files
that had the name "Rhonda" on them, in the Firestack-Harvey
residence. In addition to that, Your Honor, we found those
records in the house. They had been printed. And so when we're
talking about these things, this is going to be very basic,
fundamental, easy to understand. But the United States laid out
its entire argument for the defense. Even though we believe
it's 701, we laid it out for them. We're concerned about their
math skills, because I've been through it with them. So --
anyway, that's what we've done.
Now, I want to go to this 508 -- go back and make just a
couple more statements, Your Honor. This belief that we can't
look at anything -- we cannot look at anything until the State's
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decided, there's a thing called the supremacy law. And where
there's a conflict, the supremacy clause applies.
And there's another thing here, Your Honor. The United
States was asked to participate in this case by state law
enforcement officials, and there's a record of that. So when
the State asked the federal government to assist them -- we're
supposed to keep out of their business? It's: The State asked
the federal government. That's a State's right issue too.
There is no Tenth Amendment violation, Your Honor. The law
did not go away on the Tenth Amendment. Merely because a
congressman or a senator says, oh, we think this is a Tenth
Amendment violation, who decides that, Your Honor? It's the
courts of the United States that decide it. And the Supreme
Court of the United States has decided that, and the law has not
changed.
The United States has every right to go forward and deal
with this case. Not only was this a case -- and I presented the
direct testimony of a law enforcement officer for you, under
oath, where he indicated that the State of Washington was going
to prosecute the case, not contrary, like is represented. He
indicated he was going to prosecute. The State was going to
prosecute.
Your Honor, the -- a lot of -- I could -- and I think that
this court has jurisdiction. And, in effect, some of the
arguments that are being made is: This court doesn't have
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jurisdiction when it comes to state matters. You decide state
matters all the time, Your Honor, be it civil or criminal. And
because it's marijuana, now, all of a sudden, you can't decide
state matters? It's absurd. And what happens is -- this is the
typical circumstance where people want to stretch to the limit
anything, so that you can legalize, so that marijuana is more
legal than anything else. It is regulated in the state of
Washington. It is regulated. Dispensaries are illegal.
And what happens -- and I continuously read this argument
that we're interfering with people from getting their medical
marijuana. The United States Attorney's Office in the Eastern
District of Washington has not prosecuted one medical marijuana
patient who was in compliance with state law. All of the
prosecutions are people who are selling or have so much
marijuana that the federal -- it's of federal interest. I have
a case with 1,031 marijuana plants with people who are from out
of state, and they're claiming medical marijuana. They don't
qualify because they're not residents of the state of
Washington, even; and that's the stretch that we're making. The
law is supposed to be reasonably interpreted. There's no reason
in the way they want you to interpret that statute. And, Your
Honor, it is, again, a battle that we've been fighting for a
long time.
I want to make a comment. There was a motion to the -- for
an attorney to get off the case. I have been waiting to get
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medical information on Mr. Harvey, just so the court's aware of
that. If the medical information comports with what has been
indicated, Mr. Harvey will not be at that trial, unless he's a
witness for the defense. I even have concerns about whether or
not -- and I have concerns about that because of comments that
have been made. I have been discussing this, asking for these
records and that; and I believe that other potential defendants
in this case have interfered with that process. And it's
unfortunate that Mr. Harvey is as ill as he is, and the federal
government wishes him the best. And we've been making efforts
to resolve this. And as soon as -- for the court's information,
as soon as there's appropriate documentation of his present
circumstances, I don't believe that you'll be seeing Mr. Harvey
at that trial, unless he's called as a witness by the defense.
And --
THE COURT: All right. Well --
MR. HICKS: -- I have just one last comment. In
reading the -- a report on what prevents access to medical
marijuana to patients who need it in the state of Washington,
the State of Washington, a few years ago, did a report. One of
the most significant things was price, Your Honor. It was
price. And what happens in a case like this -- they're selling
marijuana for $2,500 a pound. That's what they're selling it
for. And then what happens is when you get down to breaking it
down into other amounts, the price even goes higher per pound.
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Unfortunately, Your Honor, this type of conduct doesn't
further medical -- it doesn't help medical marijuana at all. It
takes away from the patients who need it. And what this case is
about -- the position of the government is, is that we are
piercing -- going through and looking behind that medical
recommendation and asking: Is this really medical marijuana, or
is this a for sales operation which is hiding behind that? And
in this case, we went to a grand jury; and there's probable
cause to believe that that's exactly what's going on. It is
looking behind it.
And there's a suggestion that the government doesn't have
the right to do that. Well, the law in the state of Washington
is that you can look behind that medical marijuana
recommendation. The State can look behind it, and they can
determine: Are you following the state law? Medical marijuana
is not a defense in the federal courtroom.
What happens is: We've looked behind the documents that
Ms. Harvey presented. We looked behind the documents. The
State of Washington looked behind the documents. And as it was
pointed out in the testimony that we presented to the court by
the witness who testified, Loren Erdman, who took and seized all
of that, the materials, it was the State that seized the
firearms, it was the State that seized all the records, it was
the State that initiated the search. And the reason he kept all
of those things is because it was his belief, as a law
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enforcement officer, that he had probable cause to believe that
they were violating the state law; and he was keeping them for
evidence, and they were going to prosecute the case. And now
we're being told, under 538, that we can't even look behind
that? We can't take it into consideration?
And the last thing is the Cole Memorandums and all of the
memorandums that are out there that talk about making a decision
as to whether or not -- and it only applies to prosecution. We
have to look at the facts of the case. And that's something
that -- apparently, Mr. Telfeyan has a hard time that the
federal government would actually look at the facts of the case
in deciding whether or not to prosecute somebody. The State can
do it, and we can do it too.
Thank you, Your Honor.
THE COURT: All right. Mr. Hicks, I have one question
of you.
MR. HICKS: Yes.
THE COURT: Are there any Bruton issues in this case?
MR. HICKS: There's no statements.
THE COURT: All right.
MR. HICKS: The only --
THE COURT: That's all I need to hear.
MR. HICKS: Yeah. There's no statements.
THE COURT: All right. Thank you.
All right. Mr. Fischer, I want to hear from you next.
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Mr. Fischer, there is an outstanding motion regarding
counsel. And I don't want to get into the details of all that,
but it's my understanding that your client does not presently
have substitute counsel able to try the case on February 23rd.
Is that correct or not?
MR. FISCHER: Your Honor, if I might clarify,
Mr. Harvey and I spoke this morning. He does not want
substitution of counsel. He wants to keep me as his attorney.
THE COURT: All right.
MR. FISCHER: So that issue is off the table, Judge.
THE COURT: All right. I'll deny that motion as moot.
I'm going through the list of motions filed. You filed a
motion to enjoin the prosecution, at ECF 541. The court's
considered that completely. I'll give you -- this is your
opportunity to tell me anything additional or highlight anything
in these motions you want to. But otherwise, I've read all the
material.
MR. FISCHER: Understood, Judge.
Your Honor, I have a housekeeping issue first. Mr. Harvey
does suffer from stage 4 pancreatic liver cancer. He's
undergoing chemotherapy. He may need to use the restroom. And
with leave of the court, I would ask the court to allow that
during this hearing --
THE COURT: Since --
MR. FISCHER: -- if necessary.
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THE COURT: Since these matters are of a legal nature,
legal rulings, the court can allow him to momentarily be not
present in the courtroom.
Without asking for permission, you can leave the courtroom
as necessary and return as necessary. Do you understand that?
DEFENDANT HARVEY: Yes. Thank you.
THE COURT: All right.
MR. FISCHER: First, Your Honor, I want to make it
clear that defendants, as you realize, more than not,
sometimes -- many times -- often personalize a prosecution by a
government, state or federal. This, I want to tell the court,
is not my position, my client's position. He does not
personalize this. I want to make it very clear that I and
Mr. Harvey hold Mr. Earl Hicks in high esteem. I do. I do not
believe this is a personal vendetta on his part. That's why
this motion to enjoin is made against the Department of
Justice -- not Mr. Ormsby's office; not Mr. Hicks, as an
assistant United States attorney. It is made against the
Department of Justice, who they operate under. So I just want
to make that clear to everybody.
Secondly, Your Honor, this motion is not unique to this
court. The court may be aware of -- that this motion is
circulating -- the motion that I presented to you -- is
circulating across the United States. I had a lot of assistance
in drafting this motion; and that assistance came from people in
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California, law professors and whatnot. But -- and federal
defenders in Santa Ana, California. So this motion is not
unique to the court.
But having said this, this motion is based purely on --
purely on spending allocation. It is not evidentiary based, as
I explained in my motion. It has nothing to do with that. It
has nothing to do with compliance. If the Congress, in passing
this bill into an act signed by President Obama, wanted to put
in the act itself thou shall not prosecute people who live in
states who provide medical marijuana laws and are in compliance
with those laws, Congress could have so stated. It did not.
This merely, as I indicated, seeks to not allocate funds to the
Department of Justice that are allocated in other parts of the
act to the Department of Justice to prosecute people. This
says: Thou shall not prosecute people in states with their own
state laws. And Washington is enumerated among the 30 states
therein, specifically stated in that act. That's the premise.
And I don't want the court to get confused with evidence.
Whatever evidence there is or is not in compliance with state
law, that is for another court to decide; and that is my
position, respectfully.
What the Washington state law has -- and this is of another
interest, and which I want to make clear to the court; and I
didn't fully brief it in my brief. But if you have 30 states
that currently have legal marijuana -- medical marijuana laws,
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each of those states -- we can pretty much surmise that they're
all different in one respect or another. Thus, is the federal
government authorized under its power to look at each state law
and to prosecute some individuals under some states but not
prosecute other individuals in other states because of their
medical marijuana laws?
For example, Washington has an affirmative defense. I have
enumerated several Washington cases saying that if you go above
15 plants per person or 45 plants per garden, then a person has,
who is charged with a crime in the state of Washington, an
affirmative defense to show medical necessity for growing over
those plant sizes.
Now, that's for Washington. This court I'm asking to
enjoin because the money should not be allocated and is not
allocated under those funds. So you not only have the
non-allocation issue, you also have an underlying issue of equal
protection under the laws of this country and of each state. In
other words, depending on state law, if the federal government
or the United States Department of Justice can prosecute some
people in some states who have an affirmative defense or cannot
prosecute people for being in compliance with that affirmative
defense -- other states don't have that affirmative defense --
they just have to be in compliance with the laws -- then
prosecution can be unequal among those 30 states.
Does that make sense, Your Honor?
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THE COURT: It does if you had a suspect class.
Where's your suspect class?
MR. FISCHER: Well, the suspect class is -- well,
Mr. Harvey and these other individual defendants are members of
the protected class within that group. The law states, and as
the court is aware, none of the funds may be available in this
act to the Department of Justice to prevent such states from
implementing their own laws. And the implementation is the
issue. Compliance is not the issue.
So having stated that, Your Honor -- and as the court has
indicated, it's read all the briefing -- it just seems illogical
to make that other step when the federal government, under the
United States Department of Justice, can look at each state law
and decide on their own who and who is not in compliance with
that state law and then prosecute them.
THE COURT: All right. I understand your argument,
and I've read the briefs. Are there any other motions that you
would like to address that -- and your client is considered
joined in all the other motions. But I didn't know if you had
any oral statements to make as to any of those.
MR. FISCHER: Understood, Your Honor.
Depending on -- I have a -- I will have an oral motion. I
prepared a brief and will ask the court to accept it. If this
court denies the motion to enjoin this case so that -- it's
currently set, as the court knows, February 23rd for trial. If
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the court does not -- seeks to deny that motion, I would ask the
court orally to stay further proceedings so that -- and I
believe I made this aware to the court in my -- some of my
filings -- that we would seek interlocutory appeal. So I'll
reserve that, depending on the court's position.
THE COURT: All right.
MR. FISCHER: Thank you.
THE COURT: All right. Thank you.
Mr. Telfeyan, you appear to have the next majority of --
number of motions presently before the court. Are there any
that you'd like to orally discuss?
MR. TELFEYAN: Yes, Your Honor. Good morning. And
may it please the court -- and a few housekeeping matters I'd
like to start with. I will be respectful of the court's time
and only address issues not already raised in the briefing.
I would just like to note that the fact that I'm not
responding to some of Mr. Hicks' comments that were in the
briefing is not a waiver of any of his points. I'm just resting
on the papers in terms of some of the responses that have
already been briefed.
I would also like to highlight that if Mr. Harvey is, in
fact, dropped from the case, if the government dismisses
charges, the other defendants have, of course, joined in his
motion for an injunction and his motion for declaratory relief.
So we would ask the court not hold those moot if he drops out of
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the case because we are still seeking the same relief that he
filed in his motion.
THE COURT: That's understood by the court.
MR. TELFEYAN: Thank you, Your Honor.
I'll try to address each of the five motions that I filed
very briefly and only on points that were not fully addressed in
the briefing.
The first one I'll discuss is the motion to dismiss. The
briefing, in my opinion, in some sense, due to the shortened
nature of the briefing on the motion to dismiss, lacks a certain
clarity on all parts, including my own, Your Honor. I think the
briefing fails to distinguish between each of the charges in the
indictment. And Congress' appropriations act provision requires
us to look at each charge individually.
Can the Department of Justice spend money on each of the
five charges? And I want to highlight for Your Honor at a
minimum, Counts 2 and 5 have absolutely no justification to
continue in this court. Most of the DOJ's briefing on the
matter has focused on the distribution issue, which we concede
will have a different analysis than Counts 2 and 5. But
Counts 2 and 5, Your Honor, relate only to the manufacture of
marijuana.
Under the Cole Memo, which, of course, was in effect for a
year and a half before the appropriations act restriction was
put in place, the DOJ could not prosecute a simple manufacture
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charge of five people growing 74 plants. I would doubt that
there would be any dispute from the Department of Justice that
they could not, under the Cole Memo, bring a charge of a
74-plant manufacturer.
What the budget act does is heighten the stakes. So the
DOJ brought this prosecution in February of 2013 consistent with
the Cole Memo because it believed that there was distribution
and use of guns, and it can combine all of those counts
together. With the budget act, it says on each count, money
cannot be spent in furtherance of the prosecution. So with
regard to manufacturing 74 plants, that is a charge that the
Department of Justice cannot spend money on. They may be able
to spend money prosecuting some of the other charges, or --
actually, we've argued for different reasons that they can't.
But at a minimum, the manufacturing charges, which are on
Counts 2 and 5, must be dismissed.
The Department of Justice argues that our position is
nonsensical -- that they must wait for a state court finding of
guilt at least on Counts 2 and 5. Your Honor, we would simply
submit that this position is the only sensible way to enforce
Section 538 of the budget act. The DOJ seems to concede that if
five individuals are clearly in compliance with state law --
let's say there are only three plants being grown -- they could
not prosecute a manufacture charge in such a case. They seem to
concede that clear compliance under state law bars a
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prosecution.
What we have in this case, according to the DOJ, is a gray
area. It's ambiguous. We're not talking about 1,031 plants
from another state, as they reference. We're talking about five
individuals allegedly growing 15 plants each. At minimum, such
an allegation is in a gray area under the state law. The state
law, as we've put before the court, authorizes any individual
with a medical prescription to grow 15 plants him or herself.
It authorizes a collective garden to grow 45 plants. The state
law says absolutely nothing about whether five individuals can
grow on the same property. It says absolutely nothing about
whether two collective gardens can grow on the same property.
There is, at minimum, ambiguity in the state law. We're not
talking about a case with 1,031 plants.
In a situation where there is ambiguity, it makes
absolutely no sense, under Section 538, for DOJ to be in charge
of deciding whether the state law has been violated. Exactly
what the law was meant to do was to keep DOJ out of it. We've
quoted in our brief statements from Representative Rohrabacher,
Brown, and Blumenauer that say we don't want the federal
government deciding how states enforce their laws. Those quotes
are all before the court. For the DOJ to determine in these
cases of ambiguity that a state violation is broken seems absurd
to us, Your Honor. And respectfully, Your Honor, we think for a
federal court to tell a state that five defendants who are
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growing 74 plants violates a state law is inappropriate, given
what Congress has tried to enact in the budget act.
So, Your Honor, in a case of ambiguity, which this
absolutely must be, at worst -- and we believe in truth it's a
case of perfect compliance -- the DOJ cannot make its own
assumption about how state law would be interpreted by the state
courts. It must wait for the state courts to say whether these
individuals are in compliance or not in compliance.
Mr. Hicks referenced on his discussion of the motion to
dismiss the state officials asked the U.S. attorneys to get
involved in this case. As I'm sure the court knows, we have
absolutely no record of that. I'm not sure what Mr. Hicks is
referring to. But even if it did occur, the law has changed
substantially since that request was alleged to have been made.
And at this point, the DOJ is barred from prosecuting, at
minimum, Counts 2 and 5, which only relate to manufacture. All
of the DOJ's arguments about this being a drug trafficking
scheme or a distribution do not apply to whether they can spend
money on a simple manufacture charge, encompassed in Counts 2
and 5.
I'll move, Your Honor, to our second motion, which was the
motion for reconsideration of the exclusion of medical marijuana
evidence. And again, I think the only point I would add to the
briefing is that the restriction on medical marijuana evidence
now needs to be looked at count by count. The Department of
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Justice's only opposition, as far as I can tell from the
briefing before I joined the case, was that use of medical
marijuana would encourage jury nullification on the manufacture
counts. I can't see how the medical marijuana information could
encourage jury nullification on any of the other counts because,
in fact, the use of medical marijuana is a factual defense to
all of the other counts. For example, the defendants are
charged with distributing marijuana. And if they can prove to
the jury that they actually never sold an ounce of marijuana
because they had to use it for their medical purposes, that's
not a nullification argument. That's a factual innocence
argument. So although the briefing was before my time, my
understanding is that the DOJ's only objection on the medical
issue is that it would encourage nullification on the
manufacture count.
Being that the manufacture count, we argue, at minimum,
must be dismissed, the Department of Justice's argument is
entirely eviscerated on the medical marijuana issue. There is
no possibility of jury nullification on any of the other counts.
If the court does not dismiss the manufacture charges, the
medical marijuana issue does become relevant even on the
manufacture count because the jury is entitled to know whether
the prosecution is legal. The law says that individuals cannot
be prosecuted if they're in compliance with state law. We've
submitted that they are in compliance or, at minimum, they're in
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a gray area. So if the manufacture charges are dismissed,
there's no nullification problem. If they are -- if they stand
as part of the case, the medical issue becomes relevant for the
jury's determination about whether the prosecution has met its
burden set by the interaction between the CSA and Section 538.
I will make two points on our motion to strike the
Department of Justice's proposed expert witness; but first, a
logistical point. We did not style that motion as a motion in
limine, understanding this court's orders to have barred all
motions in limine. But I hope the court understands it has the
same effect. We tried to style it as a motion that would be
accepted by the court. Our motion is a motion to strike. It's,
in effect, a motion in limine to exclude expert testimony.
I cited to the rule in my brief but didn't quote it, so
I'll just quote it for the court here. Federal Rule of
Evidence 702 reads that a witness who is qualified as an expert
by knowledge, skill, experience, training, or education may
testify in the form of opinion. Of the 18-page brief that the
DOJ submitted, the vast majority of the statements are based on
training and experience -- exactly the qualifications that
Federal Rule of Evidence 702 envisions for an expert witness.
Training and experience are, in fact, specifically enumerated as
expert testimony under Rule 702; and we've also provided the
court with Ninth Circuit case law to that effect.
The training and experience testimony is what we are
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arguing should be excluded. I am very pleased to see the
Department of Justice has effectively conceded that it will not
offer any of the expert testimony that it has proffered. That's
how I understood its oral statement. We do not object at all to
the introduction of fact testimony from a fact witness, which
would include what the witness saw during the investigation and
would even include a conversion from pounds to ounces. That is
not expert testimony, and it's not based on training and
experience. That being -- sorry, Your Honor.
THE COURT: Mr. Telfeyan, I have to interrupt you.
Realizing that I inherited this case, where in the file
does it order the government to turn over expert notice?
MR. TELFEYAN: Your Honor, I have not seen that order.
I presume --
THE COURT: Nor have I. I went through the whole
file, and I couldn't find it.
MR. TELFEYAN: Exactly. I presume it was either made
orally or not made at all, Your Honor. Our motion is not based
on any deadline for expert witnesses. It's simply based on the
court's deadline for briefing.
THE COURT: And therein lies the problem -- what
you've just identified. What's the fact testimony, on the one
hand? And where does it cross the line into expert testimony?
And I am presuming, because you're saying -- your paperwork says
this -- that if it goes into the expert testimony, you want
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three months to prepare, to meet that expert testimony, because
it was late disclosure. But some of what was proffered by the
government seems to me to be argument, pure and unadulterated
argument, that counsel could make during closing argument, but
shouldn't be given the imprimatur of an expert telling the jury
certain things.
MR. TELFEYAN: Your Honor --
THE COURT: What's your read on that?
MR. TELFEYAN: -- I completely agree with the court's
position on that. So -- and that's quite helpful. There are
three areas that I think are up for analysis at this point. One
is direct fact testimony that the officer saw during the
investigation, which of course he can testify to. The second is
testimony only based on his training and experience. And the
third is argument. We have no objection to counsel making
argument in front of the jury. We don't think a fact witness
should be added with the imprimatur of expertise by making those
legal arguments. The -- and there seems to be no dispute,
unless the Department of Justice disputes the line between fact
and expert testimony in this case.
Your Honor, just to clarify, the fact that there appears to
have been no deadline for expert testimony does not affect our
position because our arguments on prejudice apply equally,
whether there was a deadline or not. We simply don't have
enough time to find a rebuttal expert.
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THE COURT: All right. I wanted that clarification.
And then let's just take one of these as an example -- the fact
that firearms were possessed, and the government says there's a
nexus between drug trafficking and firearms, and expert
testimony to say that there's this nexus. But you would agree
with me that the witness can say we recovered these firearms,
and here's where we recovered them, and whether or not they were
loaded, or any condition that they were in; and you would agree
that that witness -- lay opinion testimony or whatever you want
to call it -- could say firearms are used to protect yourself.
They can -- they can -- they can be used for that purpose.
MR. TELFEYAN: Your Honor, that's actually where I
draw the line, respectfully.
THE COURT: You're saying that firearms can't be used
to protect?
MR. TELFEYAN: No, Your Honor. I'm not saying that
firearms can't be used to protect oneself. But I think that's
exactly the kind of point that an attorney must make in their
argument before the jury. If it's a witness's opinion that
firearms were used, then, in fact, it's kind of an obvious fact
that the witness doesn't even need to state. The witness is
called to present factual evidence for the jury that he found
firearms, that they were or were not loaded, what rooms they
were in, and et cetera.
THE COURT: Well, and then the -- then the -- then it
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goes on. Let me -- let me say -- then the third type of expert
testimony or testimony elicited would be that others -- drug
traffickers, the criminal element -- uses guns. But that's
taking a broad generality and applying it to these defendants,
and that's something for the jury to decide. So --
MR. TELFEYAN: Yes, Your Honor. And it's -- it's that
third category which we believe is the most extreme that falls
vulnerable to confrontation issues and propensity issues, as we
briefed. So once the officer starts to testify that in his
18 years of experience, he's seen that the common modus operandi
of criminals is to carry guns or drive ATVs or wear blue jeans
or whatever the testimony is, that's quite clearly expert
testimony, because it can only be based on his training and
experience.
THE COURT: Well -- and then -- and then you want
three months to find an expert that says -- what?
MR. TELFEYAN: Your Honor, we would want three months
to find, if such an expert exists, that, in fact --
THE COURT: That's what I'm asking.
MR. TELFEYAN: -- in fact, the modus operandi of
individuals who sell drugs is nothing like the facts that this
expert witness has proffered, that individuals who sell drugs do
not necessarily wear blue jeans, that they don't necessarily
drive ATVs, that they don't necessarily carry firearms, or,
alternatively, an expert to say individuals who carry firearms
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actually are more likely to use them for many lawful purposes,
such as hunting, such as protecting themselves; and usually
they're not associated with drug trafficking. If such an expert
exists, we would want to retain that expert to rebut the
evidence put on by the prosecution.
THE COURT: All right. I understand your argument.
You can go back -- move on to the next motion.
MR. TELFEYAN: Yes, Your Honor. I'll move on to
briefly discuss the earliest motions filed which, now are a
distant memory.
Your Honor, we have before the court a motion for
additional peremptory challenges, which I understand is entirely
within the court's discretion. We have a very short brief on
that subject. I will only add something that was not added to
the brief on the need for additional peremptory challenges,
given the multiple defendants in this case.
The defendants, as Your Honor may be aware, differ wildly
in terms of age, ethnicity, gender, and other factors, and may
very well have different interests in ensuring a fair
cross-section of the jury. As Your Honor knows, the defendants
have been barred from communicating with each other about the
case. So they have not collaborated on defense strategy.
THE COURT: Do you want me to lift that bar?
MR. TELFEYAN: Yes, Your Honor. We do. We've been in
touch with the government about lifting that bar, and we have
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not heard their position on the matter.
MR. HICKS: Your Honor, can I interrupt for a second?
THE COURT: Yes.
MR. HICKS: There is not a total bar. That is
inaccurate.
THE COURT: No. I understand that. I've reviewed the
record. The question now is, as we are mere days from trial,
whether or not they can begin talking about the case, if they
choose to talk about the case.
MR. HICKS: They've never -- that's never been denied,
as long as counsel was present. It's never been denied. So
there's not a bar.
THE COURT: All right.
MR. HICKS: All right.
THE COURT: That will be the court's ruling right
there.
MR. TELFEYAN: Respectfully, Your Honor, we would ask
that -- because this is a family and they live together,
especially because I'm based in Washington, D.C., that the bar
not require the presence of counsel.
THE COURT: All right. By telephone or otherwise.
The problem you get into is -- and I've got to protect
everybody's interests. But as soon as somebody says something
in preparation for trial and then somebody flips and wants to
plead guilty and cooperate and testify, then you've invaded the
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defense camp; and then it's a whole other constitutional issue.
If the counsel is present, then we won't -- we won't have that,
I suspect.
MR. TELFEYAN: Understood, Your Honor. I was merely
bringing up the point to highlight the need for additional
peremptory challenges. And the only point I would add is the
different cross-sectional interests.
THE COURT: Well, the court is going to grant
15 peremptory challenges by the defense, in total.
MR. TELFEYAN: Okay.
THE COURT: 15.
MR. TELFEYAN: Thank you, Your Honor.
Turning to the next motion before the court -- I have, by
the way, nothing to add on our written motion for oral
voir dire. So the next motion I'll speak briefly on is our --
is, rather, the government's recently filed motion in limine.
We received that on Tuesday, Your Honor. And, first, we'd ask
at least until Tuesday to file our written response, obviously
given the briefing in this case. It's been somewhat flurried
just in the days leading up to trial.
THE COURT: Well, tell me your thoughts on that,
because it's rather uncontroversial, in the court's view, right
now. And I don't want to put you to the expense of having to
file another written brief next Tuesday.
MR. TELFEYAN: I would --
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THE COURT: You've read the brief.
MR. TELFEYAN: I would appreciate that, Your Honor. I
have read the brief, and I do have three points to make in
response to it.
The first is: To the extent -- which I only fully realized
during counsel's comments today -- the extent to which the
motion in limine directly attacks comments made by me as opposed
to the defense as a whole, I have to, Your Honor, take personal
offense to those allegations. I have been an officer of the
Department of Justice for five years. My first job was as a law
clerk to one of the most respected federal judges in the
country. I've dedicated my career to public service, and I've
dedicated my career to upholding the rule of law. I would never
violate my oath to this court. I'm an officer of this court.
And the furthest thing from my mind would be to violate any of
these courts' orders. The insinuation that I would do so is,
frankly, disrespectful.
The quotes that the Department of Justice was relying on,
which, of course, I feel no need to authenticate, because, as
the court knows, they're double hearsay; and I have no idea of
the accuracy of them. But to the extent that I believe -- that
I would like the jury to hear the full facts of this case on the
distribution charge, there's no question about that. I want the
jury to know that none of these defendants ever sold or gave an
ounce of marijuana to any human being on the face of this earth.
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They are completely innocent of the distribution charge. The
Department of Justice has argued that the jury should not see
the full facts on the distribution charge. Your Honor, it is
simply not jury nullification to argue to the jury that these
defendants did not distribute marijuana.
My second point on the jury nullification motion is the
prosecution's limited understanding of jury nullification. I
guess from a prosecutor's perspective, the term "jury
nullification" can only mean a defense attorney sneakily trying
to get the jury to acquit.
From a defense attorney's perspective, Your Honor, I fear
jury nullification for the opposite reason. As the court knows,
juries can convict defendants who are innocent for reasons
independent of the evidence. Nullification is any time a jury
disregards the evidence -- what they've seen and heard in the
court -- and decides to vote for a verdict inconsistent with
that evidence.
Because these defendants are completely innocent of all
charges, I don't want jury nullification in this case. I want
the jury to apply the evidence and find the defendants not
guilty of every charge. I don't want the prosecution using
improper methods to try to get the jury to vote guilty. So both
parties are in agreement that the jury should base its
conclusion on the evidence and what it sees and hears in court
and not on any improper factors.
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For the prosecution to argue that only the defense seeks
jury nullification is also insulting, Your Honor. None of the
defense attorneys, as far as I've seen in this entire record,
have ever suggested that we want the jury to do anything but
look at the facts and find these defendants not guilty because
of what the evidence shows.
The third point I'll make on the Department of Justice's
motion in limine respects the gun charge. I've argued very
briefly that the factual truth on the distribution charge would
lead any reasonable jury to find these defendants not guilty,
because any reasonable jury would know that even if the
defendants had marijuana, they were using it for their own
personal medical use.
The same point would be made for the gun charge. It is not
nullification for a jury to say these defendants probably used
their guns for hunting, not for trafficking drugs. Similarly,
it's not nullification for the jury to say these defendants were
medical patients and wouldn't have needed guns to protect their
medicine. That's not a nullification verdict. That's simply a
verdict of factual innocence.
The prosecution's insinuation that the defense would
somehow violate their obligation to this court has no basis. If
the defendant ever does anything improper, the prosecution has
the same recourse that we, as defense attorneys, have -- to make
an objection in court and ask the -- ask Your Honor to restrict
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the question -- the improper question. But, Your Honor, on all
of these issues, I, for one, can say I'm preparing to make sure
that I do not ask improper questions. I hope the prosecution is
doing the same. But I will make the same objection if I believe
the prosecution is trying to get the jury to vote in -- to vote
guilty, contra -- inconsistent with the facts.
THE COURT: Well, you keep saying "inconsistent with
the facts." My understanding of jury nullification is
inconsistent with the law. Nullify a law. Nullify a federal
law in favor of a state law.
MR. TELFEYAN: So --
THE COURT: That was the crux of the government's
motion.
MR. TELFEYAN: Let me just put it this way, Your
Honor, at least speaking for myself. The defense in this case
intends to ask the jury to vote not guilty only because the
facts prove these defendants not guilty. So --
THE COURT: And that's what the court will expect of
you and not to argue any other matter that the court has
previously excluded -- for instance, the medical marijuana laws
in the state of Washington -- because if we are in trial, those
will not be relevant --
MR. TELFEYAN: Exactly, Your Honor.
THE COURT: -- to the trial.
MR. TELFEYAN: And we have not -- even in the motion
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for reconsideration, I do not believe the medical marijuana laws
of the state of Washington are relevant. All I'm trying to
highlight in the motion for reconsideration is: What the
defendants did with the marijuana that they allegedly possessed
is a defense to the distribution charge. They cannot be limited
to simply saying we used it for our personal use, because the
credibility of that statement is in the details. What do you
mean, you used it for your personal use? Were you smoking to
get high all day? Were you making hemp garments out of it? The
details of how the marijuana was allegedly used will make their
defense believable. And as the Supreme Court has held, and I
put in the briefing, being able to put forth a complete defense
is, of course, a constitutional right. So whether the jury
believes what the individuals used it for that would prevented
them from selling it is a -- is a -- is a plainly relevant
defense, a factual defense, to both the distribution and the gun
charges, Your Honor.
Thank you, Your Honor.
THE COURT: Just one second. Let me check my list
here.
(Pause in proceedings.)
THE COURT: All right. That's all I have for my list
as well. Thank you.
MR. TELFEYAN: Thank you.
MR. FISCHER: Your Honor, may I speak briefly
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regarding Mr. Telfeyan's --
THE COURT: Well, we were only going to go through
this one -- one time.
MR. FISCHER: I just have one comment.
THE COURT: Tell me one.
MR. FISCHER: I just want to clarify for these
defendants that we do believe that the medical marijuana laws of
the state of Washington are relevant. We've --
THE COURT: That's plainly apparent in your briefing.
MR. FISCHER: I don't want any argument to believe
that we're waiving that argument. All right?
THE COURT: I understand that.
Mr. Maxey, do you have anything?
MR. MAXEY: Your Honor, I believe that co-counsel has
eloquently covered all the issues that are before the court.
THE COURT: All right. And Mr. Niesen?
MR. NIESEN: I'm of the same opinion, Your Honor.
THE COURT: And Mr. Cikutovich?
MR. CIKUTOVICH: I just have one quick thing, Your
Honor, if I may.
THE COURT: Yes.
MR. CIKUTOVICH: I talked to co-counsel about this. I
just don't know what the answer is.
I suspect there's going to be testimony from law
enforcement officers saying: We found paperwork; and in my
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training and experience, this paperwork indicates what may be
signs of distribution, such as payo sheets or keeping track of
things of that nature.
The law in the state of Washington has changed dramatically
in the last year with regards to medical cannabis. I've been
advising people with medical cannabis, and my advice has
changed. Now, if you have a collective garden, the advice I
would give somebody is to keep records. And the reason you're
keeping records is to distribute the cost of operating the grow.
As you're well aware, ten years ago, drug dealers don't
keep records; and there's a reason they don't keep records --
because they don't want them found later. Law enforcement will
look for payo sheets, and it's usually in code so that you don't
think they're payo sheets. But now, the advice we're giving to
patients is to keep detailed records so that you can show that
you're legitimate, so that when -- if law enforcement shows up,
you have nothing to hide; and, in fact, you can show that you're
in compliance with the state cannabis law.
The reason I bring that up is if the officer is going to be
of the opinion in this case that these documents are evidence of
distribution and being illegal, we may be able to present an
expert that says: Absolutely not. This is to indicate that
they were in compliance with state law.
So if he says they found these documents, that's fine.
That's a fact. If he starts to give an opinion of them based
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on -- if he thinks "O" means ounce or he thinks this means that,
well, that's when he goes into expert testimony; and we can have
somebody to counter that. I can bring an ex-DEA agent that
says: Prior to medical marijuana, marijuana was always in
grams. It was not in ounces. Marijuana was this, and marijuana
was that. It's a different framework now. And I think
they're -- I'm afraid that they're going to open the door with
the paperwork once they start opining about what they believe
those numbers are. And if they do open that, the medical
marijuana and medical cannabis is completely relevant, because
patients now should be keeping detailed records for a reason --
so that they can show compliance.
So I'm just concerned prior to trial, Judge, that -- I'm
going to claim that door is open once they say that, and I
anticipate they're going to say that. And I think that -- I
think we're completely allowed, then, to counter with medical
cannabis in the state of Washington to show that that's not what
these numbers are.
THE COURT: All right. Counsel, this is our final
pretrial conference before the scheduled trial. I want to
inform you that I do have a trial that will bump into this
trial. I hope to have it done by February 23rd, when this one
is supposed to start. If that trial runs over, we will begin
this trial, I expect, either the 24th or the 25th. So there's a
chance that it's going to be the 23rd, 24th, or 25th right now.
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Additionally, I'm informing you -- and I'll put this in a
written letter to counsel. The first day of trial, we'll start
at 8:30. We'll meet in the courtroom to resolve any outstanding
issues prior to jury selection. I'll ask you to bring a witness
list so that we can question the jurors as to their familiarity
with any of the witnesses that you expect to call.
Additionally, I'll have expected to have received, before
the first day of trial, copies, bench copies, of your exhibits,
so that the court can follow along during your presentations.
I will give voir dire to both the government and the
defense attorneys. I'll limit that to ten minutes of oral voir
dire. That, you'll see, will come on the heels of both a
detailed written jury questionnaire that you'll receive, as well
as my questioning of the jurors. So I expect ten minutes will
be completely sufficient to discover the conflicts in this case.
We'll be picking a 14-member jury. That's two alternates.
Accordingly, as I've indicated earlier, there will be
15 peremptory challenges to the defense, to be divided up as you
deem necessary. You'll get one additional alternate strike,
peremptory strike, for the alternate.
The jurors will receive a copy of the preliminary jury
instructions and a notebook and a writing utensil.
Objections -- I want objections to be in a simple,
straightforward manner. No speaking objections. If we need to
take a sidebar to hear a case, that will be done at the
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recesses, at lunch, before and after court. It will not be done
while the jury is in session. So if you expect us to get into
issues that require a sidebar, notify chambers staff; and we'll
schedule that during one of the breaks. If an issue comes up
that can't be resolved, we'll move on to another line of topic
and have to go back to it after a break or lunch, after we've
resolved that issue.
Counsel is to be familiar with the electronic discovery --
or -- presentation equipment here. You can contact the court
and become familiar with it. The time to become familiar with
the electronic devices, the ELMO -- the jurors all have screens.
And if you're going to present documents or pictures or anything
and you want them to see it, you need to introduce it, get it
admitted, and then you ask to publish it. Only after you ask to
publish it will I rule that the monitors may be turned on, and
they can view evidence that -- only evidence that's been
admitted. But the time to learn how to use this equipment is
not in front of the jury. It's outside their presence.
I don't know how many witnesses will be called in this
case. But my typical procedure is to take a photo of each of
the witnesses. That will be put in a notebook. The jury will
be able to use those photos to recall the testimony while they
deliberate. Those photos will be destroyed at the end of their
deliberation. It's only for the purposes of the jury's
recalling the testimony.
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I'm contemplating giving opening statements 20 minutes per
attorney.
Court is run from 8:30 till 5:00. And I expect witnesses
to be in the hallway, ready to testify, without any downtime
between witnesses. We'll take an hour and a half lunch, from
noon to 1:30. We'll take two morning recesses, two afternoon
recesses; but we'll work all the way till 5:00 every day.
I'll issue a detailed written order on the motions that
have been presented to me. They're all submitted. I expect to
get those out immediately because of the trial setting coming so
closely.
Mr. Fischer, anything else we can accomplish here today?
Any other items? Any questions?
MR. FISCHER: If you have not denied the motion thus
far, Your Honor, then I'll reserve the filing of the motion to
stay.
THE COURT: I understand.
Mr. Maxey, anything else we can accomplish here?
MR. MAXEY: No, Your Honor.
THE COURT: Mr. Niesen?
MR. NIESEN: No, Your Honor.
THE COURT: Mr. Cikutovich?
MR. CIKUTOVICH: No, Your Honor. Thank you.
THE COURT: Mr. Telfeyan?
MR. TELFEYAN: Just briefly, Your Honor. If the court
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is contemplating 20 minutes' opening statement per attorney, we
would ask that some flexibility be given if the attorneys decide
to pool their time or collaborate. We haven't actually met as a
group yet, but we may -- we may collaborate on how those opening
statements are given. And we would be respectful of the court's
sort of cumulative desire to move forward with the case.
THE COURT: Well, that comes with its downsides; and
I'm not going to lecture you on the downsides to that. I'll
be -- I'll hear that the first morning of trial --
MR. TELFEYAN: Thank you, Your Honor.
THE COURT: -- if you want to divide it up. But it's
got to be reasonable.
Mr. Hicks, anything further we can accomplish here at this
hearing today?
MR. HICKS: There's nothing further. Thank you, Your
Honor.
THE COURT: All right. I'll issue a detailed written
order, covering these topics. Thank you.
(The proceedings recessed at 12:10 p.m.)
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C E R T I F I C A T E
I, DEBRA KINNEY CLARK, do hereby certify:
That I am an Official Court Reporter for the United
States District Court at the Eastern District of Washington;
That the foregoing proceedings were taken on the date
and at the time and place as shown on the first page hereto; and
That the foregoing proceedings are a full, true and
accurate transcription of the requested proceedings, duly
transcribed by me or under my direction.
I do further certify that I am not a relative of,
employee of, or counsel for any of said parties, or otherwise
interested in the event of said proceedings.
DATED this 17th day of February, 2015.
/s/Debra Kinney Clark
Official Court ReporterUnited States District CourtEastern District of Washington
