Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 1 of 33 Page ID #:2123 1 1 2 UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 3 4 5 - - HONORABLE CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE PRESIDING - - - 6 UNITED STATES OF AMERICA, 7 8 9 10 11 ) ) PLAINTIFF, ) ) VS. ) ) CESAR ALEJANDRO CASTILLO FLORES ) MANUEL ALEC MORENO, ) ) DEFENDANTS. ) ___________________________________) CASE NO.: CR 16-833-CAS 12 13 14 REPORTER'S TRANSCRIPT OF PROCEEDINGS 15 MONDAY, APRIL 10, 2017 16 LOS ANGELES, CALIFORNIA 17 18 19 20 21 22 23 24 LAURA MILLER ELIAS, CSR 10019 FEDERAL OFFICIAL COURT REPORTER 350 WEST FIRST STREET, ROOM 4455 LOS ANGELES, CALIFORNIA 90012 PH: (213)894-0374 25 UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 2 of 33 Page ID #:2124 2 1 2 APPEARANCES OF COUNSEL: 3 ON BEHALF OF PLAINTIFF: 4 BY: 5 6 7 JAKE NARE BRETT SAGEL ASSISTANT UNITED STATES ATTORNEY 1100 UNITED STATES COURTHOUSE 312 NORTH SPRING STREET LOS ANGELES, CA 90012 8 ON BEHALF OF DEFENDANT FLORES: 9 10 OFFICE OF THE FEDERAL PUBLIC DEFENDER BY: PEDRO CASTILLO DEPUTY FEDERAL PUBLIC DEFENDER 11 12 13 14 321 EAST SECOND STREET LOS ANGELES, CA 90012 ON BEHALF OF DEFENDANT MORENO: YOLANDA BARRERA, ESQ. 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 3 of 33 Page ID #:2125 3 1 2 3 INDEX 4 PROCEEDINGS PAGE STATUS CONFERENCE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 4 of 33 Page ID #:2126 4 1 LOS ANGELES, CALIFORNIA; MONDAY, APRIL 10, 2017; 1:45 P.M. 2 - - - 3 THE CLERK: 4 Case No. CR 16-833. 5 United States of America versus Cesar Alejandro 6 Calling Calendar Item No. 14. Castillo Flores and Manuel Alec Moreno. 7 Counsel, please state your appearances. 8 MR. NARE: 9 10 Good afternoon, Your Honor. on behalf of the United States. Jake Nare Present with me is Assistant United States Attorney Brett Sagel. 11 THE COURT: Good afternoon. 12 MR. CASTILLO: Good afternoon, Your Honor. Pedro 13 Castillo on behalf of Cesar Alejandro Castillo Flores who is 14 present before the Court. 15 MS. BARRERA: He is in custody. And good afternoon, Your Honor. 16 Yolanda Barrera appearing with Manuel Alec Moreno who is 17 present. 18 THE COURT: All right. Good afternoon. 19 I know you have the reviewed the Court's tentative 20 so why don't I just let you proceed and tell me what you have 21 in mind at this juncture. 22 MR. CASTILLO: Yes, Your Honor. If I may begin, 23 thank you, Your Honor, for the Court's tentative ruling. I 24 do wish to address the Henthorne issues because I do believe 25 that they are significant in this case. I think Ms. Barrera UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 5 of 33 Page ID #:2127 5 1 will address all of the other issues raised in our discovery 2 motion that the Court has given us the tentative on. 3 As the Court knows, this case began when our 4 clients were stopped on the I-5 corridor just north of 5 Santa Clarita on the way to what they call the Grapevine. 6 THE COURT: Yes. 7 MR. CASTILLO: There was one sheriff deputy in the 8 vehicle and his reasons for stopping the car that my client 9 was driving were twofold. He said that the car was speeding 10 78 miles an hour and secondly, that the car switched from the 11 lane that it was on to the lane next to it and then swerved 12 back to the original lane. 13 that it's our position that both of those reasons are 14 invalid. 15 I think the Court understands As the Court is aware, the case law is pretty clear 16 that if someone is pulled over, there has to be a reason. 17 There has to be probable cause for a traffic violation, and 18 we cited cases that stand for that proposition. 19 Your Honor, when I started looking at the case, I focused on 20 Deputy James Peterson who was the sheriff officer who stopped 21 my client and the passenger his codefendant. 22 And so, I was made aware of one case in my office the 23 Rafael Gonzalez Ariano case that I also cited in my papers 24 wherein a defendant in that case was also stopped for a very 25 similar circumstance. I think the reasons given by Deputy UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 6 of 33 Page ID #:2128 6 1 Peterson in that case was that the car had tinted windows and 2 then secondly, it veered from one lane to another lane. 3 in that case as the Court knows, the issue was consent 4 because it was Deputy Peterson's original position that he 5 spoke to that defendant and that -- in English and that 6 defendant understood his questions in English. 7 And As it turns out, that defendant did not understand 8 English, was a Spanish-speaking defendant. Subsequent 9 investigation by the U.S. Attorney's Office revealed that 10 Deputy Peterson had actually called two Spanish-speaking, I 11 believe, at least one Spanish-speaking deputy, perhaps two, 12 to the scene and that those officers were told that the 13 defendant in custody was Spanish speaking, did not speak 14 English. 15 And so a defense motion to suppress was filed along 16 with the discovery motion in that case. 17 provided by the government pursuant to Henthorne. 18 given based on a protective order and shortly as the 19 motion -- on the eve of the motion to suppress in that case, 20 the government dismissed that case outright. 21 Discovery was It was And we asked the government for that Henthorne 22 information. We asked for the reasons as to why that case 23 was dismissed. 24 Your Honor. 25 think it was actually in my reply brief to the government's They did reveal some information to us, I think I attached those letters in my, um, I UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 7 of 33 Page ID #:2129 7 1 opposition which I filed under seal. 2 But in those as exhibit, I think it's B, 3 Your Honor, to that filing, I submitted a letter that I 4 received from the government detailing what I just sort of 5 summarized to the Court. 6 Deputy Peterson at the time the Gonzalez Ariano case was 7 being prosecuted that he gave to the U.S. Attorney who was 8 Anne Kim statements that were not consistent based on 9 subsequent interviews with other deputies who were at the 10 scene. 11 ability to speak English. That there were meetings with 12 And, again, it was all relating to the defendant's It's our position, Your Honor, that this is 13 significant Henthorne and the government has said well, we've 14 given you that information so you should be satisfied. 15 answer is no because if the Court will look at that 16 March 20th letter, what we have are the government's 17 summaries of what happened. 18 Our We don't have documents relating to the interviews. 19 The Court knows that when the U.S. Attorney's Office 20 interviews witnesses, they prepare reports. 21 present. 22 are present. 23 written memorandum and they don't dismiss a case willy-nilly. 24 They do it only based on information that they have 25 Agents are Other higher-ups from the U.S. Attorney's Office They make notes, they make reports, they make that we believe in this case would have lead them to believe UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 8 of 33 Page ID #:2130 8 1 that this particular officer lacked credibility on a key 2 issue. 3 based on credibility grounds. So it's our position that the case was dismissed 4 If that were the case, which if we're wrong, we ask 5 the government correct us, then we think under Brady and 6 Giglio we're entitled to this information because it is 7 exculpatory. 8 it's impeachment information about a government witness that 9 will be sole witness at the motion to suppress in this case. It is evidence that will help our defense and 10 At least the sole significant witness as to why the vehicle 11 was stopped. 12 Again, Your Honor, it's our position we don't have 13 any documents other than what the government has given us. 14 And if they've told us this is enough, what are we to do 15 then? 16 Peterson? 17 I was sent an email by the government that with respect to 18 the July 9th interview which was the initial interview with 19 Deputy Peterson, AUSA Kim was present. 20 Judge Rosella Oliver was present. 21 Call the U.S. Attorney's Office to impeach Deputy We note that there were other AUSAs, for example, Also, then AUSA now On the November 12th interview, Task Force Officer 22 Robert Wagner, who's the same DEA officer that we have in our 23 case, was present along with AUSA Kim. 24 Deputy Pedro Romo interview, AUSA Kim was accompanied by AUSA 25 Lindsay Dotson. On November 14th, the On the November 14th interview, AUSA Kim was UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 9 of 33 Page ID #:2131 9 1 accompanied by AUSA Sandia Ramada. 2 So here, Your Honor, the foundation is there for a 3 case being dismissed, a serious drug case being dismissed on 4 credibility grounds with the same officer we have that's key 5 in our case. 6 entitled to, Your Honor. 7 provide us what they would in any case or at least which they 8 should give us which is evidence we are entitled to under 9 Brady and Giglio and we would also argue Rule 16. 10 We're not asking for something that we're not We're asking for the government to One other thing that's significant, Your Honor, is 11 that I asked the government point blank for what's called a 12 dismissal memorandum prepared by AUSA Kim. 13 indicated in their reply that if any such memorandum exists, 14 we're not entitled to it because it's work product. 15 my reply that I filed, I found a case in this district, 16 Your Honor. 17 District Court case in the Northern District of California, 18 if I can find the cite. 19 They have And in It's not a 9th Circuit case, but it is a And while I'm looking for it, Your Honor, what that 20 case said is that under very similar circumstances, it's 21 United States versus Bergonzi 216 FRD 487 2003 Northern 22 District of California. 23 prepared in connection with a criminal investigation, it was 24 not protected by the attorney/client privilege and should be 25 disclosed to defendants under both Brady and Rule 16. It held that when a report was UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 10 of 33 Page ID #:2132 10 1 And we believe, Your Honor, this dismissal 2 memorandum would undoubtedly have information about why the 3 case was dismissed, but more significantly, a lack of 4 credibility finding against this deputy. 5 that memorandum, that clearly falls within Brady, falls 6 within Giglio, falls within Rule 16. 7 to other information that could be helpful. 8 9 And if that is in It would also lead us As the Court knows, Rule 16 is broader than Brady and Giglio and it says if some information is available that 10 would lead to other admissible information, we have a right 11 to at least seek it. 12 to look, um, look behind the -- I'm not -- I don't have my 13 Wizard of Oz analogy, but we're not asking to see what's 14 behind the curtain and what the wizard is wearing. 15 asking for information that we feel is relevant to our case 16 in order to proceed on the motion to dismiss. 17 Your Honor, I'll submit. 18 19 THE COURT: So again, Your Honor, we're not asking All right. We're And with that, Why don't we hear from the government on that issue, and then I'll go to Ms. Barrera. 20 MR. NARE: 21 As it relates to the Henthorne information, the 22 bottom line is the government has provided the facts that 23 defense can use to impeach Deputy Peterson should it be 24 deemed relevant by the Court. 25 THE COURT: Thank you, Your Honor. Let me follow-up on what Mr. Castillo UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 11 of 33 Page ID #:2133 11 1 asked. 2 officer? 3 Are there reports, 302s of interviews with the MR. NARE: Your Honor, there is not. There weren't 4 agents present. 5 there weren't agents present during those interviews. 6 think Mr. Castillo misspoke when he mentioned Wagner being 7 there at one of the interviews. 8 was that during his interview, these following AUSAs were 9 present. 10 In the interviews referenced by the defense, I What it meant to indicate So there's no 302s available for those interviews. THE COURT: Are there any notes of any kind? I 11 mean, I assume they're going to say interviews that your 12 office conducted were in the nature of work product, but if 13 you've dismissed the case, is it still work product? 14 MR. NARE: Your Honor, I have not inquired whether 15 there's notes available in these case. 16 I would make. 17 done, but at this point, I have not done that. 18 That's the statement If Court does want us to inquire, that can be THE COURT: I think maybe you have to submit those 19 things to the extent they exist for an in camera review if in 20 fact they are notes taken in cases where there's been a 21 decision not to proceed because as I understand it, if the 22 case is over, the work product is, you know, also over. 23 MR. NARE: Your Honor, I would need to clarify on 24 that whether the work products ends at that point. 25 these were short interviews that were made in preparation for UNITED STATES DISTRICT COURT Again, Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 12 of 33 Page ID #:2134 12 1 this case. 2 lengthy initial report as well for a statement. 3 certainly have the facts that they can use to impeach him at 4 this point. 5 They have his lengthy declaration as well as his THE COURT: They Well, let's be sure we're all clear and 6 talking about the same thing. 7 just be clear, where the government decided not to proceed 8 against a defendant where Officer Peterson was the witness? 9 MR. NARE: 10 THE COURT: 11 MR. NARE: 12 THE COURT: 13 Was there a prior case, let's Yes, Your Honor. And that case was? The ^Ariano case that's cited. Right. So that case is separate from this case; is that accurate? 14 MR. NARE: 15 THE COURT: Correct, Your Honor. So my question is if the Ariano case is 16 not going forward and if in fact you are contending that you 17 have work product in that case, once you make the decision 18 not to go forward, to dismiss the charges, isn't the work 19 product at least discoverable or available to the Court? 20 21 22 MR. NARE: Your Honor, I would have to research that issue before giving you an intelligent answer on it. THE COURT: Okay. Then, see, I guess the problem 23 here and I understand the government's position, but I guess 24 the problem here is that we have Officer Peterson's 25 credibility on the line, if you will. And what the defense UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 13 of 33 Page ID #:2135 13 1 is saying that he has in other cases given reasons or made 2 statements that just aren't true. 3 the case, and I'm not saying it is, but to the extent it is 4 the case, then I suppose they're entitled to it. 5 MR. NARE: And to the extent that's Your Honor, my response would be to 6 point to that Morris Viaz case that I cited there which 7 deciphers between an attorney's opinions and thoughts on the 8 matter and the facts. 9 facts and that's what we've provided. And the defense is entitled to the They seem to be 10 searching for the previous AUSA involved in this case, her 11 thoughts and opinions such as the dismissal memo. 12 position is they're not entitled to that. 13 THE COURT: So our The problem is when you're talking 14 about someone's credibility, a decision to dismiss the case 15 may or may not be based upon the credibility of one of the 16 witnesses. 17 know, the opinion becomes relevant. 18 is sort of skirting around the issues relying on the case law 19 and the classic doctrine and they don't really address what's 20 the contention here and that's the concern I have. 21 22 23 And it seems to me in those circumstances, you MR. NARE: Sure. But as I say, everyone Well, Your Honor, we could review that issue about work product being no longer valid. THE COURT: Why don't you do that. Because I think 24 I'm correct about work product and I think if there is an 25 issue, then at minimum you have to submit it to the Court for UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 14 of 33 Page ID #:2136 14 1 in camera review. 2 MR. NARE: So, Your Honor, would you like us to 3 depending on what we find in our review of the work product, 4 just submit in camera any notes that may exist on that 5 previous case from those interviews? 6 THE COURT: 7 MR. NARE: 8 MR. CASTILLO: 9 Yes. Okay. Thank you, Your Honor. And just one final thought on that, Your Honor, and that's, again, if the government will also 10 submit that dismissal memorandum to the Court for review, we 11 would at least be satisfied initially if the Court reviewed 12 it and determined whether anything in that memorandum has 13 discovery to which we're entitled under Brady and Giglio and 14 Rule 16. 15 16 THE COURT: Well, if there is such a memorandum, why don't you submit it to me and I'll review it. 17 MR. NARE: 18 THE COURT: 19 MR. NARE: Your Honor, may I have one moment? Sure. And, Your Honor, just so you're aware, 20 there may be another issue regarding the Tuey process. 21 is all being submitted through Tuey, but we'll address that 22 with our in camera filing. 23 THE COURT: 24 MR. CASTILLO: 25 Okay. This Thank you. One final thing I did fail to mention, Your Honor, is that as a result of that Ariano case, UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 15 of 33 Page ID #:2137 15 1 Deputy Peterson was investigated by the Internal Affairs of 2 the Sheriff's Department for perjury. 3 the letter from the AUSA said that those charges were 4 concluded to be not founded. 5 somehow made to be not necessarily inconsistent with what was 6 in the police report or what he told the government, I guess. 7 We feel, again, we're entitled to that information and those 8 underlying documents regarding that perjury investigation. 9 Even though, again, That his declaration was It was then subsequently turned over to the 10 District Attorney's Office for prosecution and the government 11 again tells us there was insufficient evidence to prove that 12 the were statements false so I guess there was no 13 prosecution. 14 There's documents in those files. 15 But, again, as the Court knows, there's files. We feel we should have them. The government they 16 say they're not in our custody and control, but certainly, 17 they looked at those documents. 18 summarized them without looking at them. 19 THE COURT: 20 MR. CASTILLO: They couldn't have Why can't you subpoena them? We can, Your Honor. As the 21 government indicated under Tuey, we have to go through a 22 protocol to subpoena the AUSAs in this case. 23 the government counsel behind me, a Tuey subpoena for Anne 24 Kim, the prosecutor in the Ariano case. 25 that subpoena documents that we feel are relevant including We submitted to And we attached in UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 16 of 33 Page ID #:2138 16 1 any documents that she has in her possession that would 2 undermine the credibility of Deputy Peterson. 3 I guess we'll litigate that issue. I'm sure the 4 government has indicated they're going to oppose or at least 5 litigate that. 6 some subsequent hearing. 7 We'll continue to do this because we feel this is essential. 8 This is the whole reason why we're here. 9 So we'll have to appear before the Court at THE COURT: But we have, Your Honor, we will. I get that and the only thing I'm not 10 really here to provide shortcuts. If you have to go through 11 the Tuey procedures, that's what you should do. 12 and I don't know how I compel the federal government to go to 13 the state government and go through their documents when the 14 law is to the contrary. But, I mean, 15 But there are procedures that you can follow and I 16 know given your great experience, you'll be able to do that. 17 So we may not get to trial tomorrow as a result of all of 18 this, but it does seem to me that there are avenues available 19 to you that are legally recognized. 20 MR. CASTILLO: 21 THE COURT: 22 MS. BARRERA: Yes. Okay. Thank you, Your Honor. Ms. Barrera. Your Honor, just a couple of points 23 on the Henthorne issue. First, Mr. Moreno does join in the 24 requests that were made by Mr. Castillo on behalf of his 25 client, Mr. Flores. I did file the reply before this issue UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 17 of 33 Page ID #:2139 17 1 arose, but we do join in those requests. 2 One of the things that concerns me about that, 3 Your Honor, is that we will not have the ability without 4 these documents, we will not have the ability to be able to 5 effectively cross-examine Deputy Peterson. 6 is say no to whatever a question is then, and then we're 7 stuck. 8 no way that we can impeach him. 9 for the government at a trial in this case. All he has to do We have no witnesses, we have no documents. 10 There is He is the central witness Your Honor raised the issue why can't we subpoena 11 the records and this is a recent issue. 12 our way through it. 13 we're going to be back before the Court on several motions to 14 quash the subpoenas which is what has happened in the past in 15 other cases when we have attempted to subpoena documents from 16 state agencies, the AUSA in the federal case comes in with a 17 motion to quash, but be that as it may, we certainly can 18 proceed in that fashion. 19 We are still working We fully intend to do that, but I think With respect to the other issues, the other issues 20 that we have in this case, Your Honor, our concern is that we 21 believe that the government obviously has a different view in 22 terms of what's Brady and what's Giglio and what needs to be 23 produced. 24 respect to that and that has resulted in the motions that 25 have been filed here. And we clearly have a difference of opinion with UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 18 of 33 Page ID #:2140 18 1 But calling attention in particular to the specific 2 request, first, the audio video recording and Your Honor has 3 indicated that that is denied because the government 4 represents that they have turned over all audio and all video 5 recordings. 6 Your Honor. 7 I do not believe that that is the case, And the reason that I do not believe that the 8 government has done that is when you view -- when you look at 9 the video, there is audio on it and then suddenly the audio 10 goes away. 11 Deputy Peterson switched it off, but the government says that 12 Deputy Peterson did not have a recorder on his person and 13 that the only recording is the one in the car. 14 And so either it is certainly possible that However, in the video, you see Deputy Peterson 15 walking out of his patrol vehicle approaching the car where 16 our clients were and you hear the audio. 17 speaking to the defendants. 18 the car. 19 have marijuana? 20 that. 21 You hear him You hear him saying step out of You hear him saying do you have heroin? Do you have et cetera? Do you You hear all of When the defendants are put in the patrol car, all 22 of a sudden there is no more sound even though it is clear 23 that Deputy Peterson is speaking to Deputy Hoslett. 24 someone turned that off. 25 from the government. So We have not gotten an explanation I think that there was -- that there is UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 19 of 33 Page ID #:2141 19 1 another video that's outstanding. 2 an explanation as to why the sound suddenly turned off. 3 And at a minimum we need Another issue with respect to the scientific 4 evidence that we requested which this Court had also denied 5 because the government indicates that they have turned 6 everything over, there is a new issue that's very 7 significant, Your Honor. 8 at did not have GPS information on them. 9 subsequent to those videos provided us additional videos 10 The initial videos that we looked The government has which with a WGB player, we can see what the speed is. 11 And the speed that is shown on that video shows 12 that the defendants were not speeding as Deputy Peterson says 13 at the time that they were recorded. 14 that is in those vehicles appears to record 30 seconds before 15 when the light is activated, when the red light is activated. 16 In those 30 seconds, there is no speeding and there certainly 17 is no speeding after the light is activated. Now, the GPS system 18 Now Deputy Peterson is saying that they were 19 speeding before he activated the light which is in our 20 opinion very suspect because if they were speeding before, he 21 should have stopped them before. 22 documentation of the speed that has not been turned over to 23 us. 24 25 There has to be some Now, if the government gets up here and says there isn't anything else, we have turned everything over, then I UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 20 of 33 Page ID #:2142 20 1 would ask that they provide us with information with respect 2 to the manufacturer of the GPS system that is in those 3 vehicles and just let us do our job. 4 manufacturer and find out why was this GPS set to record only 5 30 seconds before. 6 Is that system being reported in the deputy sheriff's office 7 in some manner? 8 9 Let us then contact the What are the capabilities of that system? So if they don't want to give us the answers to the questions that we have which we believe are very significant 10 in this case, then we would just ask just give us the name of 11 the manufacturer and we will do the leg work that we need to 12 do to be able to ferret out the evidence that we need for 13 purposes of effectively representing our clients. 14 With respect to the personnel files and that was, 15 um, the government has indicated, I'm not sure that the 16 government actually indicated that he reviewed the entire 17 personnel file. 18 some of the questions that we have asked have not been 19 answered. 20 against Deputy Peterson? 21 Have any complaints from anyone been made against Deputy 22 Peterson? 23 And this falls more into Henthorne, however, Questions such as have any complaints been filed We've gotten no response on that. Now, we do have that information that Mr. Castillo 24 already argued, but we have not gotten any representation 25 from the government that that's all that's in his personnel UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 21 of 33 Page ID #:2143 21 1 file. We would want a statement from the government with 2 respect to that. 3 The other request that I made was a number of cases 4 charged by the U.S. Attorney's Office in the last three years 5 with similar fact pattern, and this Court has denied it on 6 the basis that that has nothing to do with the credibility of 7 Deputy Peterson and so I won't argue that. 8 like to argue that what is relevant is cases that have been 9 filed by the U.S. Attorney's Office where Deputy Peterson was 10 11 However, I would the arresting officer. And I know that in the order Your Honor indicated, 12 I believe indicated, that information should be provided to 13 the Court in camera, but I think more than that is required, 14 Your Honor. 15 now, it appears that there are from my knowledge, at least 16 ten cases which were filed recently where Deputy Peterson is 17 the officer. 18 Because I think that there are many cases right We as defense attorneys, Mr. Castillo and I, are 19 handicapped right now in terms of doing our work because the 20 information we have received regarding Henthorne has been 21 provided to us pursuant to a protective order. 22 that if I find out that attorney so-and-so from the panel has 23 a similar case with Deputy Peterson, I can't get together 24 with that attorney and say was there any -- were you provided 25 with any Henthorne from the government? UNITED STATES DISTRICT COURT So that means Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 22 of 33 Page ID #:2144 22 1 They can say yes, but they can't tell me what it 2 is. 3 investigation when our hands are being tied because of this 4 protective order. 5 from that portion of the protective order that has to do with 6 speaking to other attorneys about Henthorne. 7 And there's no way for us to be able to adequately do an So I am asking that this Court relieve us THE COURT: Well, don't I have to do that on a 8 case-by-case basis? I mean the problem here is I think there 9 are a lot of questions that the defense has raised that the 10 government should feel it has to answer and I will ask the 11 government to answer. 12 For example, when I say that the government 13 represents it has produced everything, I have traditionally 14 relied on that sort of a representation. 15 clear that if there's something that hasn't been produced, 16 then I expect it to be produced in those areas where I have 17 indicated that, you know, it's appropriate for the government 18 to produce. 19 But I want to make But the difficulty here is that you want me -- I 20 think you're entitled to some of this information. I mean, 21 you're certainly entitled to know who manufactured the GPS, 22 but I don't know if you've made that request or if you're 23 just asking me to order it willy-nilly. 24 have to go to through the procedures. 25 procedures that are appropriate, fine. I just think you And if go through the UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 23 of 33 Page ID #:2145 23 1 I also think the government has to tell you what 2 complaints have been filed and whether in fact there's 3 discipline against this officer. 4 ten stops, I can say he's a very busy guy. 5 more on the spectrum than just about everyone else and I 6 understand why you are concerned. 7 something improper, but it is certainly worthy of inquiry. 8 But, I mean, we've just got to try to follow the rules and 9 not just stand up here and say he said she said. 10 If he's been involved in He is showing up Doesn't mean that there is And I just think you all have to meet and confer 11 one more time and get out on the table the exact things that 12 you want the government to produce, and then come back to me 13 and say they said yes as to these and no as to these. 14 this is why I'm entitled to have what they say no to because 15 this is just too vague. 16 MS. BARRERA: And All the requests that I am arguing, 17 Your Honor, have been made to the government. 18 items were not in the discovery motion because the discovery 19 motion was filed a month ago. 20 motion, we did receive additional discovery. 21 THE COURT: Some of the And following the discovery That sometimes happens. All I'm trying 22 to say is before I can finally rule on this, I need to have a 23 clear list of what you've asked for and what the government's 24 response is so that I can make informed rulings. 25 As far as protective orders, I mean, there may well UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 24 of 33 Page ID #:2146 24 1 be Henthorne in other cases, but the protective order 2 certainly doesn't limit me. 3 I say I need this information in this case. 4 protective order so that we defense counsel can see it in the 5 case that's now before us. 6 willy-nilly say the protective order is dissolved because I 7 need to know facts. 8 9 You just have to come to me and Please lift the But I'm not gonna just The information was produced pursuant to a protective order for a reason and I don't think that a third 10 party can just go in and say nothing's protected because I 11 need to know what information was supplied by the government 12 in that case. 13 Obviously, at the end of the day, you know, I'll 14 have no hesitancy doing it. 15 government has not produced material information, I know the 16 two of you are gonna bring on a motion to dismiss for 17 prosecutorial misconduct. 18 trying to make the record as clear as possible right now and 19 I appreciate that. 20 and meet with the government and set forth what it is you 21 precisely want and I know precisely what the government's 22 response is. 23 If it turns out that the And I understand that you are It will be clearer, though, if you list MS. BARRERA: We can certainly do that, Your Honor. 24 And I think that's particularly true with respect to the 25 request that I have with respect to the canine because very UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 25 of 33 Page ID #:2147 25 1 few of those requests have been, um, very few of those, um, 2 very little discovery has been provided and I do have a long 3 list. 4 And rather than standing here and reading it to the 5 Court which the Court has already read, I think it probably 6 makes sense for us to meet with the AUSA and go through each 7 one of them, and then provide a report to the Court with 8 respect to our meeting and what the government's position is. 9 THE COURT: Yeah, and I think a joint report makes 10 perfect sense because I get your concerns and I am not trying 11 to cast them aside, but I'm trying to, you know, address them 12 within accepted procedures, and that is the problem I'm 13 having with all of this today. 14 And you obviously have a motion to suppress coming 15 down the pike and I've looked at briefly and, obviously, I 16 don't think it's a frivolous motion. 17 reasons, I think it makes sense for you guys to meet and 18 confer, and then if you need to have me lift a protective 19 order in some case, obviously, it's a problem where I'm going 20 to have to go a colleague in many instances and say I would 21 like the information turned over and I don't take that 22 lightly. 23 MS. BARRERA: 24 THE COURT: 25 That's fine. So for all those Thank you, Your Honor. Are we in agreement that the answer before I issue anything is that you meet and confer and come UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 26 of 33 Page ID #:2148 26 1 back? 2 MR. CASTILLO: 3 MR. NARE: 4 THE COURT: 5 How long do you think it will take you MS. BARRERA: If the government is available, I don't see why I can do that in the next two days. 8 9 Yes, Your Honor. to do that? 6 7 We're in agreement, Your Honor. MS. EL-AMAMY: Your Honor, this is Reema El-Amamy on behalf of the United States. I am the person handling the 10 Tuey requests in this matter. 11 a very broad scope of documents from all of the United States 12 Attorney's Office and I am in charge of figuring out what 13 exactly there is. 14 AUSAs involved including trial counsel as well as the AUSA 15 mentioned. 16 United States Attorney as to what the position is that our 17 Office is taking. 18 Defense counsel has requested Meeting and conferring with all of the And ultimately getting a decision from the acting Particularly since the Court mentioned a potential 19 motion for prosecutorial misconduct, I'm simply not 20 comfortable representing in two days that I've gotten 21 everything. 22 23 24 25 THE COURT: No, I think two days is ambitious and probably not realistic so what do you propose? MS. EL-AMAMY: I would propose two weeks, but I've been somewhat in the loop in terms of what the scheduling is UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 27 of 33 Page ID #:2149 27 1 going to be and I believe the date suggested for the motion 2 to suppress is April 24th. 3 would like the information before the motion to suppress 4 hearing. 5 government does whatever it's going to do with respect to the 6 motion. 7 office are strongly considering a motion to quash everything 8 which would require additional time in terms of -- 9 10 And I assume that defense counsel I would suggest April 24th for the date that the And I can let everyone know that supervisors in my THE COURT: A motion to quash everything what? MS. EL-AMAMY: Well, there is a subpoena for AUSA 11 testimony and I am fairly confident that our office is going 12 to moving to quash. 13 THE COURT: I would not find that surprising. 14 MS. EL-AMAMY: Correct. There are documents and I 15 can represent to the extent that defense counsel is entitled 16 to anything that is Brady-related, our office will certainly 17 do that if we have not done that already. 18 is taking the position that there is certain deliberative 19 process privilege as to memoranda or why a certain case was 20 dismissed or anybody's opinion one way or another regarding 21 the deputy at issue. 22 THE COURT: 23 However, my office Well, I think you ought to think very carefully about that. 24 MS. EL-AMAMY: 25 THE COURT: Yes, Your Honor. Because my problem is that I do think UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 28 of 33 Page ID #:2150 28 1 that some of the discovery is going to turn out to be overly 2 broad, but we have perhaps different definitions of what is 3 Brady and what is not Brady. 4 MS. EL-AMAMY: 5 THE COURT: Understood, Your Honor. And if there is evidence that goes to 6 the, you know, credibility of the principal witness in the 7 case, we're gonna have to find a way to get that to the 8 defense. 9 MS. EL-AMAMY: 10 THE COURT: 11 defend their client. Because they're entitled to have it to 12 MS. EL-AMAMY: 13 THE COURT: 14 15 Yes, Your Honor. Understood. Okay. Mr. Castillo, did you have something to add? MR. CASTILLO: The only thing I would add, Your 16 Honor, is I keep talking about the sentencing memorandum. 17 think it's essential. 18 I think it's essential for the government to at least provide 19 that to the Court or under some kind of in camera review. 20 I'm sorry. The dismissal memorandum. I feel that if the government is going to fight us 21 on the Tuey issue which I fear they will, then I think this 22 is going to become something that -- 23 I MS. EL-AMAMY: I think that there's some happy 24 medium and I think both sides have taken very strict 25 approaches. And I think part of that stems from the fact UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 29 of 33 Page ID #:2151 29 1 there was a subpoena to have another AUSA testify in a manner 2 that the United States Attorney's Office finds inappropriate. 3 And so I think that this process has gotten a lot more 4 contentious rather than a meet and confer because it was 5 taken in that direction. 6 THE COURT: Well, hear me everyone. This is a 7 situation where defendants are entitled to have Brady, 8 Henthorne, et cetera. 9 taking the deposition of every person in the United States That does not mean we get there by 10 Attorney's Office. 11 articulating reasons for dismissal of a case, that ought to 12 be submitted to me in camera. 13 I do think if there is a memorandum And I do think if there are things in files for 14 this particular deputy that show that complaints have been 15 filed or investigations have been conducted, I think it's 16 appropriate for the Court to see those and determine what 17 should be turned over. 18 19 20 MS. EL-AMAMY: Sounds good, Your Honor. So in terms of timing would two weeks be okay. THE COURT: I think two weeks to get a joint report 21 is appropriate. I am guessing then that's going to cause the 22 defense to feel that they want to have me hear the motion to 23 suppress afterwards. 24 MR. CASTILLO: 25 MS. BARRERA: Yes, I think that would be accurate. Yes, Your Honor. UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 30 of 33 Page ID #:2152 30 1 THE COURT: Just let me know what you have in mind. 2 I guess we have, what, May 1st would be the next Monday or 3 May 8th. 4 MR. CASTILLO: I would suggest the later date, Your 5 Honor, because whatever is revealed to us leads us to do more 6 follow-up or more investigation, we may need a little bit of 7 extra time. 8 THE COURT: 9 trial date for when? 10 THE CLERK: April 25th. 11 THE COURT: So we've got to do something about 12 13 Then as far as we currently have a that; is that correct? What do you have in mind? MR. CASTILLO: I have trial on May 16th that I 14 think will go, Your Honor. 15 after that. 16 17 THE COURT: of that week. Okay. I would probably ask for the week My problem is I may be out part What do we have in the first week of June? 18 MR. CASTILLO: 19 THE COURT: 20 MS. BARRERA: June 6th is fine with me. What's the 23rd? What about the 30th? Your Honor, I'm in trial May 23rd. 21 think because of Memorial Day weekend, it might go into that 22 week before Judge Stanton. 23 24 25 THE COURT: I My problem is I'm going to be out of the country starting the next week in June. MS. BARRERA: Then May 30th is fine with me. UNITED STATES DISTRICT COURT I'll Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 31 of 33 Page ID #:2153 31 1 work it out. 2 THE COURT: Let's set it for May 30th and be sure 3 the defendants have no objection. 4 a waiver. 5 the same day, but let's try again. 6 to suppress on May 1st or is that just not possible? 7 Ms. Jeang tells me we have another criminal trial MR. NARE: 8 that date. 9 out that week. 10 Could we hear the motion Your Honor, I think I'm the conflict of Unfortunately, I'm a reservist. THE COURT: 11 May 30th. 12 for the best. 13 I'm not sure that we need I'm going to be We don't know about the other trial on Why don't we just set this for May 30th and hope Mr. Moreno, Mr. Flores, do you each understand that 14 you have a right to proceed to trial on the now scheduled 15 date of April 25th and that in order to obtain or consider 16 these discovery matters, we're proposing a trial of May 30th? 17 DEFENDANT MORENO: 18 THE COURT: 19 DEFENDANT FLORES: 20 THE COURT: 21 Yes, Your Honor. Do you understand that, sir? Yes, Your Honor. And do you both agree to continue the trial to May 30th? 22 DEFENDANT MORENO: Yes, Your Honor. 23 DEFENDANT FLORES: Yes, Your Honor. 24 THE COURT: Then let's do what we can and 25 Okay. forge ahead, I guess, because these are serious questions and UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 32 of 33 Page ID #:2154 32 1 they require serious amounts of time by all of you. 2 MS. EL-AMAMY: Thank you, Your Honor. 3 MR. CASTILLO: Thank you, Your Honor. 4 THE COURT: 5 MR. CASTILLO: 6 MR. NARE: 7 THE COURT: 8 9 Okay. Anything further for today? Nothing from us. Nothing from the government, Your Honor. Okay. We'll collect back the tentatives. (Proceedings were concluded at 2:31 p.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 123 Filed 05/18/17 Page 33 of 33 Page ID #:2155 33 1 2 CERTIFICATE OF REPORTER 3 4 COUNTY OF LOS ANGELES 5 6 ) ) STATE OF CALIFORNIA SS. ) 7 8 I, LAURA ELIAS, OFFICIAL REPORTER, IN AND FOR THE UNITED 9 STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, 10 DO HEREBY CERTIFY THAT I REPORTED, STENOGRAPHICALLY, THE 11 FOREGOING PROCEEDINGS AT THE TIME AND PLACE HEREINBEFORE SET 12 FORTH; THAT THE SAME WAS THEREAFTER REDUCED TO TYPEWRITTEN 13 FORM BY MEANS OF COMPUTER-AIDED TRANSCRIPTION; AND I DO 14 FURTHER CERTIFY THAT THIS IS A TRUE AND CORRECT TRANSCRIPTION 15 OF MY STENOGRAPHIC NOTES. 16 17 18 DATE: MAY 15, 2017____________ 19 20 /s/ LAURA MILLER ELIAS 21 LAURA MILLER ELIAS, CSR 10019 22 FEDERAL OFFICIAL COURT REPORTER 23 24 25 UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 1 of 52 Page ID #:2156 1 1 2 UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 3 4 5 - - HONORABLE CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE PRESIDING - - - 6 UNITED STATES OF AMERICA, 7 8 9 10 11 ) ) PLAINTIFF, ) ) VS. ) ) CESAR ALEJANDRO CASTILLO FLORES ) MANUEL ALEC MORENO, ) ) DEFENDANTS. ) ___________________________________) CASE NO.: CR 16-833-CAS 12 13 14 REPORTER'S TRANSCRIPT OF PROCEEDINGS 15 MONDAY, MAY 8, 2017 16 LOS ANGELES, CALIFORNIA 17 18 19 20 21 22 23 24 LAURA MILLER ELIAS, CSR 10019 FEDERAL OFFICIAL COURT REPORTER 350 WEST FIRST STREET, ROOM 4455 LOS ANGELES, CALIFORNIA 90012 PH: (213)894-0374 25 UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 2 of 52 Page ID #:2157 2 1 2 APPEARANCES OF COUNSEL: 3 ON BEHALF OF PLAINTIFF: 4 BY: 5 LAWRENCE MIDDLETON REEMA EL-AMAMY JAKE NARE ASSISTANT UNITED STATES ATTORNEY 6 7 1100 UNITED STATES COURTHOUSE 312 NORTH SPRING STREET LOS ANGELES, CA 90012 8 9 10 11 12 ON BEHALF OF DEFENDANT FLORES: OFFICE OF THE FEDERAL PUBLIC DEFENDER BY: PEDRO CASTILLO DEPUTY FEDERAL PUBLIC DEFENDER 321 EAST SECOND STREET LOS ANGELES, CA 90012 13 ON BEHALF OF DEFENDANT MORENO: 14 YOLANDA BARRERA, ESQ. 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 3 of 52 Page ID #:2158 3 1 2 3 INDEX 4 5 PROCEEDINGS PAGE STATUS CONFERENCE 4 6 7 VARIOUS MOTIONS 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 4 of 52 Page ID #:2159 4 1 LOS ANGELES, CALIFORNIA; MONDAY, MAY 8, 2017; 1:43 P.M. 2 - - - 3 THE CLERK: 4 Case No. CR 16-833. 5 United States versus Cesar Alejandro Castillo 6 Calling Item No. 17. Flores and Manuel Alec Moreno. 7 Counsel, please state your appearances. 8 MR. MIDDLETON: 9 10 Good afternoon, Your Honor. Assistant United States Attorneys Lawrence Middleton, Jake Nare and Reema El-Amamy on behalf of the United States. 11 THE COURT: Good afternoon. 12 MR. CASTILLO: Good afternoon as well, Your Honor. 13 Pedro Castillo on behalf of Cesar Alejandro Castillo Flores 14 who is present in custody. 15 THE COURT: 16 MS. BARRERA: 17 Good afternoon. Good afternoon Yolanda Barrera appearing with Manuel Alec Moreno who is present. 18 THE COURT: 19 Okay. All right. Good afternoon. So I don't even know where to begin, but let 20 me talk about what I think are my tentative views on the 21 matters pending for today, and then the question is where do 22 we go from here. 23 First of all, with regard to the government's 24 motion to quash the subpoena of AUSA Kim and Pinkle, I think 25 there are a variety of arguments floating around there, but UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 5 of 52 Page ID #:2160 5 1 basically, I think the principle defense argument is that if 2 it's not -- their thoughts are not work product, but even if 3 they are, they haven't -- uh, let's start again. 4 is saying they aren't work product and if they are work 5 product, the work product privilege has been waived, that's 6 Mr. Castillo's argument. 7 The defense The government has come back and said something 8 that I barely understand which is first of all, there's no 9 waiver, but they're also arguing, I guess, that in the reply 10 there is an argument that somehow or another this is not 11 discoverable because the opinions of the two U.S. Attorneys 12 are work product, and I think let me just cut through this. 13 No one has addressed 502 of the Federal Rules of 14 Evidence. 15 can be work product, I don't think there's been a waiver 16 because this is not the situation that 502 addresses in 17 finding intentional waivers. 18 where there is a selective waiver and here I don't think 19 there's been a selective waiver. 20 It seems to me that whether or not what they know That addresses the situation The government has been forthcoming that these 21 prosecutions were dropped. It has concluded -- given the 22 defense enough material so the defense is not being 23 sandbagged in any way. 24 confused because is it defense's intention that these two 25 people testify at the suppression hearing? Further, though, I guess I'm a little UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 6 of 52 Page ID #:2161 6 1 MR. CASTILLO: 2 THE COURT: It is, Your Honor. Okay. So my normal 403 concerns, I 3 think do not exist because here's the issue which no one 4 seems to address. 5 but nonetheless, these two witnesses could be called under 6 609(a) to express on opinion about Peterson's reputation for 7 truthfulness. 8 opinion one way or the other. 9 It seems to me that there is work product, I imagine they're gonna say they have no But I think for purposes of the suppression 10 hearing, that would be the absolute maximum to which they 11 could testify because I think their memos and other things 12 are secondly, work product. 13 has been waived. 14 502. 15 don't think that there is a waiver, intentional waiver under 16 502. 17 I don't think the work product And as I say, no one else has looked at I'm the only person who has looked at 502 and I just But that does not mean that at least theoretically 18 you could call the two witnesses to ask them their opinion 19 regarding Peterson's credibility or reputation for 20 credibility. 21 notwithstanding very confusing case law is that you could ask 22 his reputation and they're gonna say they don't know his 23 reputation and now we've gained nothing. 24 25 But I think the question under 609(a) So it seems to me that while they theoretically could be called at a suppression hearing, that would be the UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 7 of 52 Page ID #:2162 7 1 four corners of what they could testify to. 2 that puts the defense out of business because I do believe 3 that there are other traffic stops by Deputy Peterson, 4 particularly that in the Ayala Avia case which I will 5 probably have to take up out of the presence of the defense 6 which are relevant. 7 I don't think Because I think to the extent the defense is 8 bringing forward a theory of 404 B that Peterson had the 9 opportunity to act as he did on other occasions and knew how 10 to do these things, there are other arrests where he has 11 indicated that he's smelled marijuana, his companion deputy 12 denied smelling marijuana. 13 And the question is which I think the defense would 14 want to raise on any motion to suppress is this how he 15 operates and does he have knowledge and is that a manner in 16 which he operates when he arrests people. 17 from the in camera review, there are some documents which I 18 will take up with the government and I think I'm convinced 19 should be produced to the defense which address that issue. 20 And I believe that As far as the prior discipline issues, that's 21 something I'm gonna have to take up with the government, too. 22 I think that it is not proper to tell the government that 23 they have to go back and do -- provide further information. 24 25 They're required to give the defense the Henthorne information that's been produced to them by the Sheriff's UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 8 of 52 Page ID #:2163 8 1 Department. That said having reviewed some of the sheriff's 2 documents, I believe there's some things in there the defense 3 should know about which would reflect upon the discipline. 4 As far as the narcotic dog records, I think that 5 the field performance of the dogs is relevant and I think it 6 should be produced. 7 The -- I just don't think there's anything more 8 there about the recording devices worn by Peterson. I 9 understand, sort of understand the defense argument, but I 10 just don't see anything in the videos or anything else to 11 suggest that there are more recording devices than have been 12 disclosed by the government. 13 We still have in our bright future the motion to 14 suppress which I think we need to set for next week and we'll 15 have to talk about the timing of that. 16 On the motion to compel discovery, I think I've 17 talked about Henthorne. 18 has in its possession, probably produced all there is and I 19 accept their representation. 20 there's more out there that the government probably didn't 21 see which was in the possession of the Sheriff's department. 22 I think based on what the government My only problem is that I think And I think that to the extent that the Sheriff has 23 filed a motion to quash the subpoena, I think that there are 24 some documents in the production by the Sheriff that should 25 be made available. UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 9 of 52 Page ID #:2164 9 1 2 I think I've covered the memorandum prepared by the U.S. Attorney's Office. 3 On the traffic stops, as I say, I think one is 4 relevant. I do not think the defense is entitled to every 5 traffic stop under the case law, but I do think that there is 6 at least one traffic stop in addition to this which could be 7 argued by the government to be evidence of for want of a 8 better term reverse 404 B evidence regarding Peterson. 9 As I say, I think the work product privilege 10 applies to many of the memoranda prepared, but I do think at 11 the end of the day at least at the suppression hearing, the 12 U.S. Attorneys could be called to testify regarding whatever 13 they know about the reputation of Peterson for truthfulness. 14 I don't know what else in generalized terms I've 15 skipped over. 16 land for today. 17 problem here is that it's difficult for you to argue from 18 this. 19 going to issue an order today or tomorrow. 20 I think that somewhat covers the lay of the I'm willing -- I realize that part of the And what I'm going to propose is that I'm probably And then I'm in trial this week, but perhaps we'll 21 have to have two hearings next week. 22 anything you want to raise about the order and secondly, the 23 motion to suppress because obviously May 30th is fast 24 approaching. 25 One to deal with Unless there's an objection, what I want to do UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 10 of 52 Page ID #:2165 10 1 briefly is tell the government on the record what I'm 2 directing it to produce. 3 argument, they should probably do so. 4 appropriate for defense to be here or not while I do that. 5 MR. CASTILLO: 6 THE COURT: 7 MR. CASTILLO: If they feel they want to make any I'm not sure if it's If I may, Your Honor? Sure, Mr. Castillo. Your Honor, as the Court knows, 8 there's also members of my office Hilary Potashner, the 9 Federal Public Defender present as well as Christopher 10 11 Dybwad, who is the Chief Deputy Federal Public Defender. Your Honor, we appreciate the Court's indulgence 12 and the Court's looking, serious looking at this issue in the 13 manner the Court has. 14 Your Honor. We feel it's a very significant issue, 15 THE COURT: I understand why. 16 MR. CASTILLO: And I won't belabor it, but I think 17 what's at stake here, Your Honor, is a person's ability to 18 drive on the interstate without having being pulled over by 19 any or no reason as we assert in our papers. 20 Court has a lot of information that it reviewed in camera. 21 think the Court has read all the papers that we filed not 22 only in connection with the discovery motion, but also the 23 motion to suppress and also the motion to quash and subpoenas 24 that we issued. 25 I think the What we're asking the Court to do, Your Honor, I UNITED STATES DISTRICT COURT I Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 11 of 52 Page ID #:2166 11 1 think I referred to it this way when we were last in court is 2 to look at what happened in the Ariano case and in the 3 Becerra case and in the Ayala cases and see what the reasons 4 for the dismissals in those cases were which we believe we 5 already know the answer. 6 of this particular deputy who stopped our clients on the 7 interstate. 8 9 That had to do with the credibility And in their response I think to our motion to subpoena the AUSAs, one of their statements was that they 10 disclosed some information about the thinking process or the 11 reasons why they dismissed the case to the Court in camera. 12 Obviously, we're not privy to that. 13 information is. 14 have been given and we've made reference to the 227 pages 15 that we were given on April 24th when the Court ordered the 16 parties to file a joint report regarding discovery. 17 We don't know what that But we can glean from the materials that we In those materials we saw many notes, emails from 18 AUSAs, two internal investigation materials. One done by the 19 criminal sheriff investigators. 20 Internal Affairs investigators all in connection with the 21 false statements that Peterson made in the Ariano case, 22 Your Honor. 23 the government has waived work product. 24 those materials. 25 had to push and pull and -- The second one done by the And, again, our argument to the Court is that That they gave us They didn't give it to us willingly. UNITED STATES DISTRICT COURT We Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 12 of 52 Page ID #:2167 12 1 2 THE COURT: You got to go back and read at Rule 502. 3 MR. CASTILLO: And I will look at Rule 502, 4 Your Honor, but we believe that based on their providing us 5 with those materials that they have waived privilege. 6 THE COURT: I know you have. That's what you 7 argue. And what I am saying is because I had some role in 8 the National Rules Committee decision to recommend 502, I 9 know more about it than I do most things. And it is 10 intended, it doesn't countenance the notion that there can be 11 an intentional waiver unless someone is selectively 12 disclosing positive and negative information. 13 Here you knew the dismissals occurred. You knew 14 they occurred across the board. 15 suppression hearing in this case or I can determine based on 16 what I know whether Peterson is credible or not credible at 17 the suppression hearing. 18 I can have a seven-day But when you think about these other cases, there 19 are features about them that I think are relevant to this 20 case and to your defense. 21 around and evaluate every single fact in the case because the 22 cases that were dismissed may have been dismissed for other 23 reasons. 24 25 But the problem is we can't sit And I think that even though this is a very important issue that pertains to your clients and I think UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 13 of 52 Page ID #:2168 13 1 you've raised some very important issues that are worthy of 2 serious consideration, I think that we don't want to make bad 3 law here and there is work product in these cases. 4 And the other work product under all 9th Circuit 5 case law appears to be protected and I think that the cases 6 cited, I'm not even sure that I'm going to say it properly, 7 Widhurst, you've got a fairly, you know, attuned panel saying 8 that the thought process in determining whether someone was 9 truthful or not truthful is work product. 10 You've got a large mountain to climb in that regard. 11 I do think, though, as I say, there is other 12 evidence that you haven't seen that I have now seen that is 13 relevant to the defense you're putting on and relevant to the 14 question of whether Peterson is credible or not. 15 MR. CASTILLO: And I think the Court talked about 16 Rule 608. 17 Peterson's credibility or opinion reputation by other people, 18 significantly the AUSA who handled the Ariano case Ms. Kim 19 and Ms. Pinkle who a year later moved to dismiss the Becerra 20 case and actually spoke with the sheriff's investigators 21 about Peterson's lack of credibility. 22 We also cited Rule 404 B in our papers saying that Here, Your Honor, we're saying that it's bigger 23 than our clients. It is indeed a -- it almost seems to me as 24 though the government, at least at that point in time when 25 Ariano was dismissed, made a call that they wouldn't bring UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 14 of 52 Page ID #:2169 14 1 any more cases dealing with this particular deputy. 2 THE COURT: I get it, I get it, but I'm not a 3 policy maker. 4 and I understand what you are suggesting. 5 rhetorically why the government is bringing this case and 6 relying on Peterson, but that's not what I'm here to do. 7 I'm just a judge trying to decide this case, MR. CASTILLO: I could ask And five others, Your Honor, by the 8 way because there's a total that we know of from the 9 government's papers, there's six pending cases before judges 10 in this district where Peterson is the arresting officer or 11 one of the arresting officers. 12 THE COURT: He obviously is one of the most 13 successful arresting officers in the Sheriff's Department 14 based on everything I've read. 15 MR. CASTILLO: Your Honor, and I think the Court 16 has already looked at this issue, but our argument is also 17 that the way he stops people for minor vehicle infractions 18 such as speeding or in our case, initially he said our 19 clients were changing lanes and then now the government 20 saying that's drifting, that he drifted in and out of the 21 lane. 22 a vehicle too closely. 23 In other cases it was tinted windows, it was following This in our opinion, Your Honor, reflects a pattern 24 of a sheriff deputy who now by the government embracing this 25 case as a federal case in essence becomes a federal law UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 15 of 52 Page ID #:2170 15 1 enforcement officer who is stopping people for various small 2 infractions, and then subsequently either getting consent or 3 building what he believes to be probable cause which we 4 dispute so he can search the vehicles. 5 And it is true, Your Honor, that in most of the 6 cases that we see, otherwise we wouldn't see them, that large 7 quantities of drugs were found. 8 my review and Ms. Barrera's review that most, if not all, of 9 the defendants in this case are Hispanic and that leads to But it's also true based on 10 another issue, but I think it's also something that I think 11 is significant. 12 THE COURT: But if they're tinted windows, that 13 sort of flies in the face of that theory. 14 problem with this. 15 appropriate concerns, but the question now is this is the 16 case before me. 17 Look, here's the All the concerns you raise I think may be This is what I have to decide. If you want to bring some sort of civil rights case 18 and God forbid that I should be the one to get it, but a 19 civil rights case figuring out whether in fact there is some 20 kind of constitutional violation going on here pursuant to a 21 custom and practice or policy, that's one thing. 22 this criminal prosecution as a springboard for what is a very 23 important 1983 constitutional case I think is just not 24 appropriate. 25 But to use So that's why I have to, I think, follow the rules, UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 16 of 52 Page ID #:2171 16 1 dot the Is, cross the Ts and deal with these discovery issues 2 in a manner that I think is appropriate. 3 MR. CASTILLO: And Your Honor, we appreciate the 4 Court. 5 files of Deputy Peterson, the complaint and the personnel 6 documents. 7 take up that issue with the government today. 8 reason we asked for this in the way that we did by way of 9 ex parte application and early return is that we simply 10 I know the Court last week reviewed the personnel And I think the Court indicated that it would And the only haven't been given these materials. 11 And if the government's position is well, we've 12 reviewed what was presented to us by the sheriff's with 13 respect to Officer Peterson, which was their initial 14 response, we don't think that's sufficient and that's the 15 reason why we asked for it in the manner that we did. 16 THE COURT: No, I understand and I probably have 17 glossed over a lot of things that I could say more plainly. 18 I am not suggesting that to the extent that there are facts 19 set forth in the memoranda prepared by the United States 20 Attorneys that those are off limits. 21 work product. 22 product. 23 prepared by the United States Attorneys that should be 24 disclosed to you. 25 Those facts are not It's the thought process that's the work And so I am going to point to facts in memoranda MR. CASTILLO: And we thank you, Your Honor. UNITED STATES DISTRICT COURT The Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 17 of 52 Page ID #:2172 17 1 ultimate fact, in other words, the finding that they don't 2 believe this officer is credible is something we're entitled 3 to. 4 Section at that point who was Robert Dugdale or Ms. Pinkle 5 who referred the matter to the sheriffs for investigation or 6 Ms. Kim, who was the line deputy, who made the credibility 7 call after talking with him that he could not in any world 8 translate search the car in Spanish when he's not Spanish 9 speaking and when the defendant is Spanish speaking. 10 Whether that was made by the Chief of the Criminal THE COURT: I understand all of that. And I say to 11 once again, that may be the 1983 case that is brought by 12 someone and it may turn out to be a very good case. 13 know enough right now. 14 have Dugdale testify, we're gonna have to have Ms. Kim 15 testify, Ms. Pinkle testify. 16 probably all the facts in all the other cases and we simply 17 should not be doing that in your criminal defense case. 18 MR. CASTILLO: I don't But to get there, we're gonna have to We're going to bring in Well, Your Honor, I think if it goes 19 to credibility and if it's, again, it's not someone who is, I 20 think the Court understands the process by which the 21 government dismisses a case and it has to go through so many 22 levels of approval: 23 section, the chief of general crimes, maybe perhaps even the 24 U.S. Attorney at the time. 25 The line deputy, the chief of their So we just think that if a judgment call was made UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 18 of 52 Page ID #:2173 18 1 at that level that this person is not credible, that we are 2 entitled to respectfully call that person as a witness and 3 have them testify. 4 THE COURT: I know you do. You've made that 5 abundantly clear and the only point I'm saying to you is that 6 as you know, I have the right to determine credibility in my 7 own sound discretion. 8 sufficiently compelling or not sufficiently compelling for me 9 to look at evidence in the record that doesn't require And it may that be the facts are 10 testimony by the United States Attorneys and conclude that 11 one way or the other. 12 MS. BARRERA: 13 THE COURT: 14 MS. BARRERA: Your Honor, may I be heard briefly? Yes, Ms. Barrera. First of all, Your Honor, I believe 15 the record is clear, but I do join in Mr. Castillo's 16 opposition to the motion that he filed. 17 opposition, but I also join in his and I do join in all of 18 the comments that he has made here today. 19 I did file my own I briefly just looked at Rule 502 and obviously, I 20 don't have any case law on it, but it indicates that if it 21 is, if the disclosure is not unintentional, then -- I'm not 22 sure if I said that right. 23 I'm sorry. If the disclosure of the information is intentional 24 by the government, then there is a waiver and I believe that 25 in this case the disclosure was intentional. UNITED STATES DISTRICT COURT It's not like Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 19 of 52 Page ID #:2174 19 1 they gave us discovery and they accidentally put in a report 2 that we weren't supposed to get, and then we made much of 3 this report and said oh, now, you've waived because we ended 4 up getting it and then they could say well, that was 5 inadvertent. 6 You weren't supposed to have that. That's not what occurred here. It was intentional. 7 They gave us this information, the 227 pages. 8 some other information before. 9 was intentional. 10 THE COURT: They gave us So it clearly, the disclosure Well, but that's not what the rule 11 says, Ms. Barrera. 12 was such a back-and-forth about what was an inadvertent or 13 intentional waiver. 14 down and congress came down on was that in order to find an 15 intentional waiver, you had to intentionally disclose some 16 information which is a half truth and withhold other 17 information. 18 The whole rule came about because there And where I believe the committee came In those circumstances, you couldn't say, oh my 19 God, I just disclosed that inadvertently. 20 in your case is the government has disclosed that it's 21 dismissed the other cases. 22 credibility of Peterson was the reason for the dismissal. 23 That's exactly what you're trying to prove here. 24 25 And so the problem It's disclosed that the It's not as if they've selectively withheld something that's pertinent to your defense position. UNITED STATES DISTRICT COURT And Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 20 of 52 Page ID #:2175 20 1 that's the problem I have under 502 because intentional 2 versus inadvertent is addressed there to deal with this very 3 problem. 4 back and look carefully. 5 thought to look at 502, but I guess that's what I'm here for. 6 And I say, before I issue anything, I'm gonna go MS. BARRERA: I was frankly surprised that no one Very well. Thank you, Your Honor, 7 for that. As I was listening to the Court speak earlier and 8 respond to Mr. Castillo's arguments, I don't think we were 9 talking about a civil case here. I think that the 10 information we're seeking is not for purposes of a civil 11 case. 12 Peterson. 13 It goes directly to the credibility of Deputy And I'm not going to argue that more, Your Honor, 14 because I think Mr. Castillo did an excellent job of arguing 15 that, but I did want to just indicate we're not seeking this 16 for purposes of any kind of a civil case. 17 THE COURT: I know that, I know that. All I'm 18 saying is I don't think it's appropriate for this case and 19 the relief because he talked about the major impact of what 20 is decided here on other prosecutions and so forth, that's 21 not what I'm doing here. 22 trial and deal and provide due process to your defendants. 23 And I'm not trying to deal with a larger question of some 24 sort of constitutional violation. 25 I'm trying to get through this And that's why I don't think under the case law, UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 21 of 52 Page ID #:2176 21 1 it's not something that I've just made up. 2 case law suggests that you're entitled to all of that 3 information with the showing you've made. Very well. I don't think the 4 MS. BARRERA: Thank you, Your Honor. 5 I would like to address something that Mr. Castillo 6 has not addressed yet and that is with respect to the 7 remaining discovery. 8 THE COURT: 9 MS. BARRERA: Sure. We have not received quite a few of 10 what we have requested with respect to the canine. 11 that Your Honor -- 12 THE COURT: 13 MS. BARRERA: I know I'm going to order them to produce it. Yes, and we still not received it. 14 We received a letter back in February that we were going to 15 get the handler's log. 16 saying we were going to get the handler's log. 17 are now in May and we still don't have the handler's logs. 18 In April we received another letter And here we We also do not have the weekly or bi-weekly logs of 19 the canines. We submitted a letter that was attached as an 20 exhibit to Mr. Castillo's opposition, the most recent, the 21 opposition to the government's supplemental opposition. 22 in there our expert indicated that based on the information 23 that we have, he can't even opine at this point whether the 24 dog that was used in this case was properly trained because 25 there are substantial reports and documents that are UNITED STATES DISTRICT COURT And Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 22 of 52 Page ID #:2177 22 1 outstanding. 2 I have made a request for those since the beginning 3 of the case. 4 logs is just one of the items that we have not received. 5 it's very significant in this case, Your Honor, because this 6 is the first case that I've ever had involving a canine where 7 the handler did not walk the dog around the car. 8 I still have not received them. The handler's And If you look at all of the cases that are cited, at 9 least all of the cases I found Supreme Court as well as 9th 10 Circuit, it's always a situation where during whatever kind 11 of a stop, traffic or otherwise, the handler will walk the 12 dog around the car to see if the dog alerts. 13 alerts, for example, in the trunk area then they may allow, 14 they will at that point either determine probable cause or 15 allow the dog to go into the trunk area. 16 happened here. 17 THE COURT: 18 MS. BARRERA: If the dog That's not what The dog went right into the car. Because Deputy Peterson left the door 19 open. 20 training done with respect to that issue because there is 21 training available for that where the dog is trained not to 22 just jump into cars if a window is open or a door is open, 23 but we have nothing in the materials that we have received. 24 25 And so we need to know whether there has been any THE COURT: And that's a fair point and that's why I intend to order that material produced. UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 23 of 52 Page ID #:2178 23 1 MS. BARRERA: Also, Your Honor, we requested from 2 the beginning to know why this case was removed from state 3 court. 4 in state court. 5 client, had bailed out, was reporting as he was supposed to 6 and suddenly the case was dismissed and charged in the 7 federal court. As Your Honor knows, this case was originally started 8 9 10 The fact that defendants, at least my THE COURT: What is the basis for that? When you say we need to know that, isn't that a prosecutorial decision by the state and federal government that we live with? 11 MS. BARRERA: It may be, Your Honor, but not 12 necessarily. 13 I've been advised several times that they are looking into 14 that and will provide us with an answer. 15 an answer I think if it goes to the credibility of Deputy 16 Peterson. 17 state case didn't want to charge that case because they may 18 have had some bad dealings with Deputy Peterson and if that's 19 the reason, then we certainly are entitled to that. 20 21 24 25 We are entitled to I think it's very possible that the D.A. in the THE COURT: probably correct. 22 23 And in this case I was advised early on and I think if that evidence exists, you're I have seen nothing of the kind so far. MS. BARRERA: And I have nothing else, Your Honor. Thank you. MR. CASTILLO: I forgot one question. One of the subpoenas, Your Honor, we filed was with respect to the UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 24 of 52 Page ID #:2179 24 1 District Attorney's file. 2 was not charged by the D.A., but there is a file. 3 No. 85, Your Honor, we spoke with counsel for the D.A.'s 4 office. 5 think all we need is the Court to sign a protective order and 6 everybody here entered into a protective order. 7 I know the Court knows Peterson Docket They're okay with us having that information. THE COURT: That's fine. I I thought I had because I 8 know I have not received any submissions from the D.A.'s 9 office probably because they dont' object. 10 11 12 13 MR. CASTILLO: They don't, Your Honor. So I think if the Court will just act on Document 85. THE COURT: I'm more than happy to sign that protective order. 14 Yes, Mr. Middleton. 15 MR. MIDDLETON: 16 With respect to discovery, I think the government 17 has been very liberal in its production of discovery and in 18 fact I think some of the documents that the Court has 19 referenced today, the government has already turned over, but 20 certainly to the extent that the Court is going to order 21 additional discovery, for example, with respect to the dog, 22 the government's prepared to follow the Court's instructions. 23 At the same time, though, Your Honor, the Thank you, Your Honor. 24 government is very protective of its work product and its 25 opinions and decision making processes. UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 25 of 52 Page ID #:2180 25 1 THE COURT: Right. 2 MR. MIDDLETON: And we do think that those things 3 are worthy of production and should be protected. 4 are here, first of all, Your Honor, in the context of a 5 motion to suppress. 6 whether there was reasonable suspicion for the initial stop 7 and probable cause for the search. 8 9 Now, we Where the defense's objections were to And in response to the government's motion to quash the subpoena of an AUSA and also documents that the 10 government believes invades the government's work product 11 privileges, what the defense's response has been is that the 12 government is staking this case on the word of an officer 13 that the government itself has determined to be liar. 14 15 THE COURT: I think that's an accurate statement of their contention. 16 MR. MIDDLETON: It is an accurate statement of 17 their contentions, Your Honor, but I would like to make very 18 clear that those simply are not the facts. 19 case has the government ever made a determination as to the 20 officer's truthfulness in this case. 21 Your Honor, the government is not staking its case on the 22 credibility of that officer. 23 Nowhere in this Additionally, And having said that, Your Honor, I know that in 24 the past week there have been a lot of documents filed in 25 this case. Some of them kind of crossing each other, but one UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 26 of 52 Page ID #:2181 26 1 of the documents that the government filed in this case was 2 its supplemental opposition to the motion to suppress. 3 THE COURT: I have that. 4 MR. MIDDLETON: In that supplemental opposition, 5 Your Honor, what the government makes clear is that it will 6 proceed in this case on what the Court can determine based 7 solely on the video of the incident in this case and any 8 other undisputed evidence and facts that are presented. 9 if in fact that's the posture of the case and if in fact the So 10 Court makes the determination based on the video itself, then 11 that takes the officer's credibility in this case completely 12 off the table. 13 that the defense is asking for with respect to credibility is 14 really irrelevant. 15 And in fact, Your Honor, all of the discovery THE COURT: If you think I'm going to excuse you 16 from bringing Peterson in to testify, you have another thing 17 coming. 18 MR. MIDDLETON: Well, Your Honor, let me just say 19 this. First of all, if the government has ten witnesses, the 20 government can decide to only call two. 21 particular case, I don't think that relying on video evidence 22 and other evidence that the government can present that 23 doesn't rely on Deputy Peterson's credibility, then I think 24 the government can determine what evidence it wants to 25 present and it can certainly, obviously, live with the And in this UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 27 of 52 Page ID #:2182 27 1 consequences of the Court's decision. 2 THE COURT: You certainly can and I certainly can 3 draw whatever inferences by his failure to testify and rely 4 on other evidence in the case. 5 MR. MIDDLETON: And, Your Honor, that's perfectly 6 fine because, again, what the government is saying if in fact 7 the Court views the video and makes a determination as to 8 whether there is sufficient reasonable suspicion in that 9 video, then the government is asking the Court to do that. 10 And if the Court finds that there isn't, then, again, that's 11 where we are. 12 But if the Court does that and that's what the 13 government is asking the Court to do, then Peterson's 14 credibility and all of the evidence and all of the discovery 15 that's been at issue in this case really doesn't come into 16 play. 17 few other things. 18 inaccuracies I think in the defense's position. 19 But having said that, Your Honor, I want to address a In fact there are a couple of other First of all, one of the things that the defense 20 suggests, and I think it has to be addressed because it's 21 very important to what the Court believes the evidence shows 22 in this case. 23 the United States Attorney's Office has made -- has done an 24 investigation of Officer Peterson's false statements or 25 alleged false statements and nothing could be further from One of the things the defense suggests is that UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 28 of 52 Page ID #:2183 28 1 correct, Your Honor. 2 what the United States Attorney's Office does. 3 In fact as a general rule, that is not This case got here and got to the point where it is 4 in much the same way that every other case proceeds at the 5 U.S. Attorney's Office does. 6 this particular case, the case was assigned to an AUSA. 7 AUSA started to prepare the case for trial. 8 preparation, it started to prepare for a motion to suppress. 9 And I was in particular, in The As part of In preparing for the motion to suppress, it 10 reviewed the evidence including Deputy Peterson's initial 11 report of the incident and it also interviewed 12 Deputy Peterson in preparing a declaration for the motion to 13 suppress. 14 inconsistencies. 15 Deputy Peterson was telling her that weren't in the initial 16 report. 17 And in doing that, it discovered some For example, there were things that As part of that process, she also interviewed other 18 officers who were at the scene and she discovered some 19 discrepancies between what those officers were saying and 20 what Deputy Peterson had said. 21 Now, finding those discrepancies, what she did was 22 what any other AUSA would do in those circumstances. She 23 took it to a supervisor. 24 discrepancies, what happened at that point was that the 25 United States Attorney's Office made a decision that that was And upon looking at the UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 29 of 52 Page ID #:2184 29 1 not a case because of those discrepancies that was 2 prosecutable. 3 The United States Attorney's Office didn't go on to 4 make a determination as to whether Deputy Peterson -- the 5 discrepancies were because Deputy Peterson was untruthful or 6 for any other reason. That's where it stopped. 7 Now, as you might imagine, when the United States 8 Attorney's Office made the decision to dismiss a case, that 9 is fact is reported to the agencies that brought that case in 10 the first place because obviously they are deserving of an 11 explanation. 12 That's what happened in this case. But another I think misconception by the defense is 13 that the United Attorney's Office referred this case for a 14 perjury investigation. 15 government reported to the agencies what had happened because 16 it was dismissing the case. 17 That didn't happen. Again, the From that point doing their own due diligence, the 18 agencies did their own investigation. 19 aware, they didn't find that there was any misconduct 20 involved. 21 States Attorney's Office made a determination that 22 Deputy Peterson was a liar. 23 reflected in the documents that have been produced. 24 25 And as the Court is So this is not a case where anyone in the United That didn't happen. It's not And, again, when the U.S. Attorney's Office talks about credibility, what it talks about is the potential UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 30 of 52 Page ID #:2185 30 1 impeachment of a witness at trial if the discrepancies that 2 the United States Attorney's Office has identified are 3 brought to the attention of the defense. 4 means. 5 Office has determined that anyone is a liar. 6 of course, that's not what the United States Attorney's 7 Office does and it didn't do it in this particular case 8 either. 9 That's what it It doesn't mean that the United States Attorney's And as a matter Now, having said that, Your Honor, I would also -- 10 first of all, I agree with the Court that the government 11 hasn't waived its work product privilege. 12 would also say this is not a case where an AUSA should be 13 required to testify. 14 this particular case that have been subpoenaed aren't in a 15 position to opine on Deputy Peterson's credibility. 16 But the government And the reason is because the AUSAs in As I said, the U.S. Attorney's Office didn't do an 17 investigation and when you look at Rule 608, there is a basic 18 foundational requirement. 19 requirement goes beyond a few conversations with an 20 individual during the normal course of preparing the case. 21 And in this particular case with respect to one AUSA, that's 22 all there is. 23 called to testify, there's absolutely nothing because that 24 AUSA has had no contact with Deputy Peterson. 25 And that basic foundational And with respect to the other AUSA who's been THE COURT: And to that I say I agree. UNITED STATES DISTRICT COURT That's why Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 31 of 52 Page ID #:2186 31 1 I suggested early on that the only possible testimony that 2 could be elicited is the representation for truthfulness. 3 And I don't know how these two U.S. Attorneys can testify to 4 that based on being the prosecutors on a couple of a cases. 5 MR. MIDDLETON: And, Your Honor, I believe that the 6 next logical step to that is if they are not in a position to 7 do that, then the subpoena should be quashed as to their 8 testimony. 9 THE COURT: That may be what I do. To borrow a 10 phrase recently used, I'm ruminating about the various issues 11 that have been raised. 12 been so all over the map in terms of legal theory, it seems 13 to me no one has really gotten his or her arms around what I 14 think are the central issues in the case. 15 know, another agenda and I'm just not going to participate in 16 the other agenda. 17 Because everybody in this case has MR. MIDDLETON: Everyone has, you And I agree with that as well, 18 Your Honor and we might as well talk about that other agenda 19 because the defense has raised it. 20 the defense's response in this case that what they would like 21 to argue in this case for which they don't do clearly is that 22 there's some kind of selective prosecution going on. 23 they don't it, Your Honor, because they know that if that's 24 the argument they're making, then they're not entitled to any 25 discovery. And it's very clear from UNITED STATES DISTRICT COURT And Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 32 of 52 Page ID #:2187 32 1 And that is true based on the Supreme Court's 2 decision in Armstrong which is a case that originated in this 3 district. 4 issue, it's the defense that has to make a showing. 5 made no showing, Your Honor, and they can't so they're not 6 entitled to any discovery. 7 In order to be entitled to some discovery on that They've And even though when they referred to all of the 8 other cases that are going on in this district, what they're 9 alluding to is that there's some kind of selective 10 prosecution. 11 because it's the defense that has the burden and quite 12 frankly, it's not an issue that's raised in this motion to 13 suppress. 14 and straight forward. 15 there probable cause and it's not whether there was selective 16 prosecution going on. 17 The Court shouldn't entertain that argument The issues raised in this motion are very simple THE COURT: Was there reasonable suspicion and was That's a totally separate issue. Well, you've made it a little more 18 complicated because of your more recent argument that the car 19 could have been impounded and that there would be inevitable 20 discovery of the contraband and so on and so forth. 21 all be real here and understand that the elephant in the room 22 is Deputy Peterson and it's not the United States Attorney's 23 Office. 24 25 Let's It's the elephant in the room, Deputy Peterson. MR. MIDDLETON: I can agree with that, Your Honor. I will agree that that's the elephant in the room and quite UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 33 of 52 Page ID #:2188 33 1 frankly, like I said, Your Honor, what the government has 2 tried to do and what it's asking the Court to do is to 3 simplify that equation. 4 there is an interest in vindicating issues if those issues 5 aren't necessarily before the Court. Because, again, I don't think that 6 And if the government's position is we can present 7 our case on this motion to suppress without Deputy Peterson, 8 then there's no reason why the Court shouldn't entertain 9 that. 10 And, again, if the government's evidence comes up lacking, then the Court will rule accordingly. 11 THE COURT: Well, except you want me to look at the 12 video and decide the video without hearing any testimony from 13 Peterson. 14 and say Peterson lied when he said he smelled marijuana and 15 therefore, he had no basis for bringing the dog. 16 The only problem is the defense is gonna come back MR. MIDDLETON: But that's my point, Your Honor. 17 That is exactly my point. 18 defense argues in their motion to suppress is that somehow 19 because some of what Deputy Peterson said isn't captured on 20 the video like the defendant was speeding at 78 miles an 21 hour, that the government is going to come in and argue and 22 present testimony through Deputy Peterson that those things 23 occurred before the video began. 24 25 Because one of the things that the And what the government is saying is no, we're not. That's not the argument we're going to make. UNITED STATES DISTRICT COURT We're gonna say Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 34 of 52 Page ID #:2189 34 1 forget about what may have happened before the video began 2 and look at what's on the video. 3 video, the government's argument is that there is reasonable 4 suspicion for the stop in the video. 5 video and everything that happens there including the 6 conversations that Deputy Peterson had that are clear and 7 audible on the video, there is probable cause for the search. 8 9 And if you look at the And if you look at the And what the government is saying is, Your Honor, look at the video, make the decision on that basis. And if 10 the Court does that, again, there's no reason to have AUSAs 11 testifying about what may have been said in another case. 12 And, Your Honor, another reason that the Court 13 shouldn't entertain that idea is that much of the argument in 14 that case was centered around whether the defendant in that 15 case spoke English. 16 no one knows at this point, and that's not something this 17 Court should litigate in this case when it has never been 18 decided in any case. 19 THE COURT: 20 MR. MIDDLETON: And one of the problems in that case is I agree. And so it just complicates this 21 case way beyond it should be to try to litigate another case 22 where the defense is asking for opinions from the government. 23 24 25 THE COURT: That's my 403 concern that I articulated earlier on. MR. MIDDLETON: And, Your Honor, I guess the last UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 35 of 52 Page ID #:2190 35 1 point I would like to make is in addition to the fact that 2 there's no foundation under 608 and that a number of 3 9th Circuit courts have said it's just improper to have one 4 witness commenting or testifying as to the credibility of 5 another witness, there are practical and policy reasons why 6 an AUSA should not be called to testify about what she's done 7 in the normal execution of her duties. 8 executive prosecutorial function to make an assessment of a 9 case, evaluate the evidence, including the credibility of It is a purely 10 witnesses, to determine whether that case has a potential for 11 prosecution. 12 It cannot be that every time an AUSA does that or 13 every time there's a disagreement about the credibility of a 14 witness or an AUSA decides that a witness is not credible, 15 then that AUSA is subject to being hailed into court to 16 testify about what his or her opinions are. 17 THE COURT: I think I said that earlier. 18 disagree with you. 19 deliberative process that lead to the dismissal is work 20 product. 21 information under 608(a) is whether the U.S. Attorney can 22 testify as to the reputation for truthfulness by Peterson. 23 That seems to be the one area -- and there can't be any 24 follow-up. 25 I think it's work product. I don't I think the All I've said is the only potentially relevant You can't go beyond that. And that's why I started out by saying I don't why UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 36 of 52 Page ID #:2191 36 1 the defendants would call them because that's going to be the 2 limitation of any questioning, if I permit questioning, and 3 I'm not gonna permit follow-up. 4 could know his reputation. 5 they're competent to testify within the constraints of 6 608(a). 7 MR. MIDDLETON: And I don't know how they In other words, I don't know why And, Your Honor, the government 8 would simply urge that they are not. That the defense can't 9 raise a proper foundation for that kind of testimony. And I 10 would only end by saying if in fact given the fairly brief 11 contact that the AUSA had in this particular case with this 12 witness, then if it's allowable in this case, then I cannot 13 imagine the case where an AUSA actually prosecutes a case 14 with a case agent where that kind of testimony wouldn't be 15 allowable. 16 And so, Your Honor, unless the Court has additional 17 questions, I think I would submit on that. 18 one moment? 19 THE COURT: 20 MR. MIDDLETON: If I could have Sure. Your Honor, I guess I'm being 21 informed with respect to discovery, the discovery related to 22 marijuana has been produced to the defense. 23 THE COURT: Well, what discovery has been -- let me 24 tell you precisely. I can identify it without -- what I'm 25 talking about is there is a -- there are certain facts set UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 37 of 52 Page ID #:2192 37 1 forth in a memorandum to Ms. El-Amamy from Mr. Azat. 2 3 MS. EL-AMAMY: Your Honor. 4 5 Those have been produced, THE COURT: And those are Facts 1 through 9; is that correct? 6 MS. EL-AMAMY: 7 THE COURT: Yes, Your Honor. So that's been produced. That would be 8 one thing in this packet that I think should have been 9 produced. 10 The second thing the incident report that was prepared by Peterson with regard to this case. 11 MS. EL-AMAMY: 12 THE COURT: 13 And that has been produced as well. That's the incident report in Ayala Avila? 14 MS. EL-AMAMY: 15 THE COURT: Yes, Your Honor. Okay. The next thing that I think 16 should be produced is there is a packet from the Sheriff's 17 Department which includes the settlement agreement with 18 Mr. Peterson with regard to his trip to the restitution 19 hearing and attached to it is the disciplinary action 20 suspension. 21 sufficiently captured in the letter that you produced to the 22 defendants. 23 I think the reasons set forth there are not MS. EL-AMAMY: And then after we sent the letter to 24 the defendants, we produced everything that we got from LASD. 25 Everything the Court has in our packet, the defense has. UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 38 of 52 Page ID #:2193 38 1 THE COURT: So in other words, the defendants now 2 have the documents that suggest that the reason for the 3 discipline was not just showing up in the uniform, but for 4 his having been less than truthful. 5 MS. EL-AMAMY: 6 THE COURT: Yes, Your Honor. Okay. So then we don't have to have 7 that produced since they already have it. 8 thing, there is some material in the dog handler Hoslett's 9 IAB investigation regarding his past discipline which I think 10 is relevant. 11 12 MS. EL-AMAMY: THE COURT: I think that came from the Sheriff's Department. 15 MS. EL-AMAMY: 16 MR. NARE: 17 Is that in the in camera materials that we produced? 13 14 Then the next I'm not familiar with that. Your Honor, I believe that may have been subpoenaed from the Sheriff's Department from the defense. 18 THE COURT: It is. It's part of what they 19 produced. It's in the documents produced by the Sheriff's 20 Department and I think it's something they're entitled to 21 see. 22 MR. MIDDLETON: 23 MS. EL-AMAMY: Understood, Your Honor. In that fact if the first thing that 24 you just mentioned to me regarding LASD is something that you 25 got in camera, we may not have it. UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 39 of 52 Page ID #:2194 39 1 THE COURT: Let me absolutely clear. I'm not 2 suggesting for one minute that the United States Attorney had 3 this information and withheld it. 4 information that most probably the Sheriff's Department never 5 gave to you notwithstanding your request. 6 MS. EL-AMAMY: I am saying that this is We will make sure that anything that 7 the Court has, we get to the defense regarding LASD 8 materials. 9 10 11 THE COURT: Okay. And what I'm looking at, it's IAB 2256569, but I don't think you had that; right? MS. EL-AMAMY: We have both LASD investigations. 12 We produced exactly what we got from those internal 13 investigations to the defense and we Bates numbered those and 14 we produced those under a protective order. 15 16 THE COURT: Did you produce a Hoslett internal investigation report? 17 MS. EL-AMAMY: 18 THE COURT: 19 MR. MIDDLETON: 20 THE COURT: No, we have not. That's what I want them to see. Thank you, Your Honor. So now those struck me as the documents 21 that should be produced. I will tell you that there are some 22 other statements by Peterson that may become relevant if in 23 fact the government pursues the inevitable discovery theory 24 in the case. 25 that would suggest that you might not be able to make your Because I think there is to be blunt evidence UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 40 of 52 Page ID #:2195 40 1 showing that the car would have been impounded because he 2 seems to have a history of determining not to impound. 3 MR. MIDDLETON: I understand, Your Honor. 4 we make that argument. 5 should make and the facts are what they are. 6 THE COURT: Again, We think it's an argument that we They are, they are. So but just to 7 give you full warning depending on what happens in the course 8 of our scheduling the actual suppression hearing and who is 9 called and how you proceed, there may be other information, 10 not a lot, but some that I would think the defense should 11 have. 12 MR. MIDDLETON: I will say, though, Your Honor, 13 even with respect to the inevitable discovery defense 14 argument, I don't expect that the government will be relying 15 on the credibility of Deputy Peterson. 16 THE COURT: No, I'm not saying that. But I mean 17 you're saying that because neither driver had a license, you 18 would have had to as a custodian take possession of the car, 19 book the car and impound the car. 20 entitled to do an inventory search and lo and behold you 21 would discovered the contraband in the car. 22 And then you would be And what I'm saying is you're assuming that 23 Peterson would have caused the car to be impounded and I'm 24 saying that there's at least some evidence, I'm not saying 25 you're wrong, but I'm saying there's some evidence that is UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 41 of 52 Page ID #:2196 41 1 somewhat exculpatory on that theory. 2 MR. MIDDLETON: 3 THE COURT: 4 MR. MIDDLETON: Understood. So that's why I'm raising these things. I would only say, Your Honor, I'm 5 not aware, certainly, if we were aware of any exculpatory 6 evidence on that issue, we would disclose it as well. 7 not sure what the Court is referring to. 8 9 THE COURT: I'm I'm not sure that you've had a chance to see any of this because I think there's been things 10 lurking around in the Sheriff's Department that haven't been 11 turned over to you. 12 see them, I think they're at least potentially relevant to 13 the defense. 14 15 16 Now, that I've had the opportunity to Do we have anything other than setting the suppression hearing? MR. MIDDLETON: Your Honor, I guess not that the 17 government is aware of. 18 hearing, the only thing I would want to raise is the Court 19 obviously will have to decide whether it's going to require 20 the government to produce the AUSAs. 21 that one of the AUSAs may have a scheduling conflict at least 22 for next week. 23 setting a hearing. 24 25 With respect to the suppression And my understanding is I'm not sure when the Court is contemplating THE COURT: Well, I will have an answer for you because I'm gonna issue this order which is going to say yes UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 42 of 52 Page ID #:2197 42 1 or no on the subject. But we can tentatively schedule 2 something because I don't think anyone wants me to have a 3 suppression hearing on the eve of the trial. 4 would like some notice to decide what you're doing. 5 MR. MIDDLETON: 6 MR. CASTILLO: You probably Absolutely, Your Honor. Thank you. Your Honor, may I just briefly 7 respond to Mr. Middleton's arguments just on a couple of 8 points? 9 THE COURT: 10 Yes. MR. CASTILLO: And that's this, Your Honor. I did 11 look at Rule 502, and I also I think in our response, 12 Your Honor, to the opposition to the government's motion to 13 quash which is a document that we filed on May 1st. 14 sure of the docket number, but on page 9 we do recognize the 15 Rule 502. 16 Hernandez versus Tanin 604 F3d 1095 talking about a selective 17 waiver, and I think that's what the Court was getting at. I'm not We also cite some 9th Circuit authority including 18 THE COURT: Yes. 19 MR. CASTILLO: It's our position, Your Honor, that 20 by producing these documents, the government has not in 21 essence waived privilege. 22 case that we cite including the Hernandez case and see our 23 reasoning. 24 unintentionally. 25 argument is that by giving these things to us, they have I think the Court can look at the But by giving us these things, they didn't do it They did it with full intent. UNITED STATES DISTRICT COURT And so our Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 43 of 52 Page ID #:2198 43 1 2 waived the attorney work product. THE COURT: I understand your argument and I think 3 it would be a good argument had 502 not been enacted, but I 4 think 502 was intended to address a different set of 5 circumstances. 6 7 Let me go back look at the cases. MR. CASTILLO: It's on pages 9 and 10 of our May 1st filing. 8 THE COURT: Okay. 9 MR. CASTILLO: Secondly, I think it's important, 10 too, Mr. Middleton has said the government has never made a 11 finding of whether Deputy Peterson is truthful I think his 12 wording was. 13 Yet and still, Your Honor, by filing this case, by accepting 14 this case they have made a credibility finding. 15 We've never been determined him to be truthful. They've said in essence whatever happened in 2014 16 and 2015, we've forgotten about that. 17 of the cases that he has been the arresting officer on so I 18 think that in essence is making a credibility finding. 19 THE COURT: We can now embrace all More to the point, more to the point, 20 there are statements by the AUSAs in those cases that suggest 21 they did make a credibility finding. 22 MR. CASTILLO: 23 THE COURT: Exactly. And I'm aware of that. So I don't 24 think that Mr. Middleton maybe has had the advantage of 25 seeing as much as you and I, but certainly that statement has UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 44 of 52 Page ID #:2199 44 1 been made. 2 case. But what I'm saying is it's with regard to that It's not with regard to the entire world. 3 People make decisions to dismiss cases. And I'm 4 not prepared to review the evidence in every case that 5 prosecuted and dismissed because for whatever reason someone 6 thought that they couldn't proceed with the testimony given 7 by Peterson or without it or whatever the case may have been. 8 9 MR. CASTILLO: The second point he makes, Your Honor, is that if the Court reviews just the video, 10 somehow the government wins. We feel, and I think we have 11 submitted actually two videos. 12 have a speed or date stamp or time stamp. 13 got from the government after going back and forth about the 14 speed and reasons for the stop does have speed of the patrol 15 vehicle. 16 are not going 78 miles an hour. 17 lane to the next and back to the original lane. The first video we got didn't Second video we But actually looking at it, Your Honor, our clients 18 THE COURT: 19 MR. CASTILLO: They're not moving from one I know that's your position. So I think the government's 20 argument, Your Honor, is actually inapposite to the facts and 21 if the Court does view the video, we feel like we win even 22 without a hearing. 23 THE COURT: Well, I assume also, though, you're 24 gonna argue that even if the video supported that conclusion 25 and I'm not sure how I can decide that from a video, but UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 45 of 52 Page ID #:2200 45 1 let's assume I can. I'll go back and look at it one more 2 time. 3 traffic stop and there was not a basis at that point in time 4 to search the car, but for Peterson's claim that he smelled 5 marijuana. You're gonna say that's very interesting. 6 MR. CASTILLO: That was a And also, Your Honor, another 7 interesting point is some of the video is muted. 8 hear audio. 9 arrives. We can't I think that's important when the canine officer There's discussions between Deputy Hoslett and 10 Deputy Peterson. 11 only hear when our clients are being spoken to or when our 12 clients speak to the officers. 13 Those are silent. We can't hear. We can And we feel that that's significant, Your Honor, 14 because again that goes to Ms. Barrera's argument of whether 15 there was probable cause to search when the canine unit 16 arrived. 17 dog barking. 18 Deputy Peterson were talking about prior to deploying the 19 dog. 20 credibility as well. 21 THE COURT: 22 MR. CASTILLO: We can't hear the dog alerting. We can't hear the We can't see or hear what Deputy Hoslett and Certainly, that's all relevant, Your Honor. It goes to I get it. The last point I'll make, 23 Your Honor, is that the government has said that somehow, um, 24 this is -- their tone of I think over-arching tone that we 25 hear is we're sort of out there just fishing. UNITED STATES DISTRICT COURT We're looking Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 46 of 52 Page ID #:2201 46 1 for things that aren't there. 2 Your Honor. 3 enough that the Court itself is troubled about what happened 4 here. 5 That's not the case, I think the Court has seen enough and heard So ultimately, I think the Court will decide the 6 case on the merits, on what happened, on Deputy Peterson will 7 say, but I don't believe it's proper to quash a lawfully 8 issued -- they have the Tuey requirements. 9 submitted a statement of relevance as to AUSA Pinkle and 10 AUSA Kim, and we feel they should be allowed to testify, 11 Your Honor, over the government's objection. 12 would submit. 13 THE COURT: 14 MR. MIDDLETON: We met them. We With that I Okay. Your Honor, just a couple of quick 15 points. 16 government's position has been done and what the AUSAs have 17 said, I have reviewed all of the documents that have been 18 provided to the defense and have been placed before the 19 Court. 20 With the respect to the documents and what the I will note that there is one statement in those 21 documents that purports to represent some statements made by 22 an AUSA. 23 hearsay statements of another individual who was supposedly 24 told something. 25 taking a position as to whether Deputy Peterson was telling They are not statements by an AUSA. They're But in terms of the U.S. Attorney's Office UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 47 of 52 Page ID #:2202 47 1 the truth or not, the U.S. Attorney's Office hasn't taken a 2 position one way or the other. 3 THE COURT: I understand and that's one of the 4 reasons that I keep saying that the amount of time 5 consumption that will go into allowing these people to 6 testify, even if there's an arguable basis, may not be 7 worthwhile. 8 9 MR. MIDDLETON: And I guess the other point, Your Honor, defense suggest that we have made a determination 10 as to Deputy Peterson's credibility. 11 is there's no -- they don't know what went into the 12 government's decisions to bring these cases and it's not 13 really something that they're entitled to know absent some 14 suggestion or indication that the government made these 15 decisions on a constitutionally impermissible basis. 16 is no such thing. 17 I guess my point there There And the other point I would make, Your Honor, is 18 again, there are a number of different cases, but the 19 government can and I expect that the government will take the 20 same position that the government has taken in this case 21 which is that Deputy Peterson is corroborated because the 22 Court can make its decision based on what's in the video. 23 Again, Your Honor, if the Court disagrees with the 24 government or any court disagrees with the government, the 25 government will live with the court's decision. UNITED STATES DISTRICT COURT But our Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 48 of 52 Page ID #:2203 48 1 position is that there's no reason to litigate an issue when 2 the government is saying it's not relying on something that 3 the defense clearly wants the government to rely on. 4 We are not going to rely on Deputy Peterson's 5 credibility in this case. 6 can understand that the defense wants to know a lot of 7 things, but they're not before this Court if that's the 8 posture of this case. 9 THE COURT: And with taking that position, I Okay. 10 MS. BARRERA: 11 THE COURT: Briefly, Your Honor, may I be heard? Yes. My reporter needs a break, I have 12 two more matters and I need to leave. 13 repeating himself or herself or not listening to me, but go 14 ahead. 15 MS. BARRERA: And everyone is I will not repeat Mr. Castillo's 16 argument, although, of course, as an attorney, I'm tempted, 17 but I won't, Your Honor. 18 problem with Mr. Middleton's argument is we hear different 19 things every time we come to court and we hear different 20 things every time we speak to the government about this case. 21 But what I did want to say the And this is the first time that we've heard from 22 the government, other than the last filing, that they're not 23 going to rely on Peterson, that they're going to rely on the 24 video. 25 were told that Peterson -- that they were relying on what Before we were told something different. UNITED STATES DISTRICT COURT In fact we Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 49 of 52 Page ID #:2204 49 1 Peterson was going to testify to which was even though in the 2 video there's really no evidence that they were speeding, 3 that he was going to testify that before that period of time 4 they were speeding and that raised initially the credibility 5 issue that we have been fighting about. 6 I'll leave that as it is, Your Honor, but my point 7 is we never know from one day to the next what position the 8 government is going to take. 9 Your Honor, I would ask that what Your Honor has determined 10 should be turned over to us, even though the government has 11 represented today that they've turned it over, I would ask 12 that it be turned over to us again because some of those 13 items I don't have them. 14 them over, but they don't sound familiar. 15 THE COURT: 16 MS. EL-AMAMY: 17 THE COURT: 18 And because of that, I'm not saying they did not turn I'm happy to turn it over. Or I could do it again. Well, we better be sure that we're talking about the same material. 19 MS. EL-AMAMY: 20 THE COURT: Yes, Your Honor. What I propose since it sounds like you 21 know about it and you're gonna turn it over, we'll give you 22 and the defense the material simultaneously, and then you'll 23 all know what I'm talking. 24 MS. EL-AMAMY: 25 MS. BARRERA: That's fine, Your Honor. Thank you, Your Honor. UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 50 of 52 Page ID #:2205 50 1 THE COURT: Okay. Can we talk about the 2 suppression hearing so that we can give the reporter a break 3 because there are other lawyers waiting for other matters and 4 we're already quite late and I don't know if I can finish 5 them up in time, but I will do my best. 6 So Wednesday or Thursday of next week. 7 MR. CASTILLO: Your Honor, I'm scheduled to begin a 8 trial next week in Judge Wilson's court, but it will probably 9 last at least two or three days maybe. 10 THE COURT: Okay. Friday of next week does not 11 work for me. 12 a -- I know I'm gonna be gone part of that week. 13 the Monday. 14 That's the problem. First of all, do we have The 22nd is What about Tuesday, the 23rd? Let's pencil in May 23rd. I will give you advance 15 notice as to whether I'm going to rely on the video or you're 16 going to have to bring Peterson. 17 notice in my decision on the motion to quash, and in the 18 meantime, tomorrow we'll figure out how to turn over the 19 documents at issue to all of you. 20 MS. BARRERA: I will give you advance Your Honor, I am scheduled for trial 21 on that date, but I'm fairly confident that I can get that 22 continued, but I just wanted to alert the Court to the 23 possibility. 24 THE COURT: No, I appreciate that. 25 Anyone else who is sitting here today either at UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 51 of 52 Page ID #:2206 51 1 counsel table or otherwise like to address this matter as a 2 friend of the court? If not, I'm going to adjourn. 3 Okay. We'll have something for you very soon and 4 we'll see you on the 23rd. Thank you. 5 MS. EL-AMAMY: Thank you, Your Honor. 6 THE CLERK: 7 (Proceedings were concluded at 2:57 p.m.) This court's in recess. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Case 2:16-cr-00833-CAS Document 124 Filed 05/18/17 Page 52 of 52 Page ID #:2207 52 1 2 CERTIFICATE OF REPORTER 3 4 COUNTY OF LOS ANGELES 5 6 ) ) STATE OF CALIFORNIA SS. ) 7 8 I, LAURA ELIAS, OFFICIAL REPORTER, IN AND FOR THE UNITED 9 STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, 10 DO HEREBY CERTIFY THAT I REPORTED, STENOGRAPHICALLY, THE 11 FOREGOING PROCEEDINGS AT THE TIME AND PLACE HEREINBEFORE SET 12 FORTH; THAT THE SAME WAS THEREAFTER REDUCED TO TYPEWRITTEN 13 FORM BY MEANS OF COMPUTER-AIDED TRANSCRIPTION; AND I DO 14 FURTHER CERTIFY THAT THIS IS A TRUE AND CORRECT TRANSCRIPTION 15 OF MY STENOGRAPHIC NOTES. 16 17 18 DATE: MAY 15, 2017___________ 19 20 /s/ LAURA MILLER ELIAS 21 LAURA MILLER ELIAS, CSR 10019 22 FEDERAL OFFICIAL COURT REPORTER 23 24 25 UNITED STATES DISTRICT COURT