Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 1 of 30 Page ID #:839 1 1 UNITED STATES DISTRICT COURT 2 CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION 3 HONORABLE PHILIP S. GUTIERREZ, U.S. DISTRICT JUDGE 4 5 6 7 8 9 UNITED STATES OF AMERICA, ) ) PLAINTIFF, ) CASE NO. ) CR 16-850 PSG VS. ) ) MARIO MANJARREZ, ) ) DEFENDANT. ) ________________________________________) 10 11 12 13 14 REPORTER'S TRANSCRIPT OF PROCEEDINGS 15 THURSDAY, NOVEMBER 9, 2017 16 10:05 A.M. 17 LOS ANGELES, CALIFORNIA 18 19 20 21 22 ________________________________________________________ 23 MAREA WOOLRICH, CSR 12698, CCRR 24 350 WEST FIRST STREET, SUITE 4311 FEDERAL OFFICIAL COURT REPORTER LOS ANGELES, CALIFORNIA 90012 25 mareawoolrich@aol.com UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 2 of 30 Page ID #:840 2 APPEARANCES OF COUNSEL: 1 2 3 4 5 6 FOR THE PLAINTIFF: OFFICE OF THE UNITED STATES ATTORNEY BY: THOMAS RYBARCZYK Assistant United States Attorney 312 North Spring Street Los Angeles, California 90012 7 8 9 10 11 FOR THE DEFENDANT: FEDERAL PUBLIC DEFENDER'S OFFICE BY: GEORGINA WAKEFIELD Deputy Federal Public Defender 321 East Second Street Los Angeles, California 90012 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 3 of 30 Page ID #:841 3 1 LOS ANGELES, CALIFORNIA; THURSDAY, NOVEMBER 9, 2017 2 10:05 A.M. 3 -oOo- 4 5 6 THE CLERK: Calling Criminal 16-850, United States of America versus Mario Manjarrez. 7 Counsel, please state your appearances. 8 MR. RYBARCZYK: 9 Good morning, Your Honor. Tom Rybarczyk on behalf of the United States. 10 MS. WAKEFIELD: Good morning, Your Honor. Georgina 11 Wakefield on behalf of Mario Manjarrez who is present in 12 custody. 13 THE COURT: I've read the offer of proof. 14 the government response. 15 sur-reply. 16 exhibit regarding the offer of proof, and I scanned it and 17 haven't examined it closely. 18 I've read the reply. I've read I've read the And then I've just this morning received the Here's -- let me tell you where I'm at, and then you 19 can argue to that. 20 government is correct in their analysis that you want to look 21 at what happened that day and objectively look at it. 22 You know, generically speaking, I think the However, this case is a little different. And 23 obviously, if I allow the cross-examination, I'm not going to 24 use that cross-examination to change the facts as to what 25 happened that day. But I think it may be -- or at this point I UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 4 of 30 Page ID #:842 4 1 think it does bear on the deputy's credibility. 2 And I think that is probably -- if I was able to 3 examine the exhibit, that's the way I would have organized the 4 cross-examination. 5 probably your outline in some respects to the 6 cross-examination. 7 broader than I had thought or narrower than I had thought. 8 It's probably a little longer, but I haven't sat down as 9 closely as you have. 10 I'm assuming, Ms. Wakefield, that that is I haven't examined it to see if it's The issue becomes -- so he says it -- and I believe 11 the parties mention this. 12 my training and experience." 13 example, if he says, based on my training and experience, the 14 defendant looking up means nervousness or whatever. 15 giving examples. 16 my training and experience, looking down means nervousness. 17 And then in other cases he says based on my experience looking 18 straight at me is nervousness. 19 At least six times he says "based on And the other incidents -- for I'm just Then in some other prior instances, based on That bears on whether or not the Court should give 20 credibility to his, quote, "training and experience" that 21 it's -- in this particular case. 22 me the license quickly. 23 stop." 24 25 The same applies to "He gave That means he wants to shorten the In the other case, "He fumbled and gave it to me, and that gives me some other fact that gives me reasonable UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 5 of 30 Page ID #:843 5 1 suspicion to suspect criminal activity." 2 certain direction in this case which means something and 3 pointing in another case means something else. 4 Or he points in a And I don't think it's any surprise because I've 5 never seen any testimony like Deputy Vann's before. I mean, to 6 me, as I said before, it's psychological babble. 7 perspective, even without these other instances, I think the 8 government is going to be hard-pressed for me to give 9 credibility to Deputy Vann not only for the psychological And from my 10 babble, because you can turn any stop -- Deputy Vann is adept, 11 I guess. 12 that criminal activity is afoot. 13 He could turn any stop into a reasonable suspicion But the other clincher for me was his attitude. 14 has a bad attitude. 15 was disrespectful. 16 asking him questions. 17 public defender was just doing his job. 18 going to take charge of the cross-examination which he did but 19 it reflected on his credibility as being straightforward. 20 He had a bad attitude in this court. He He was short. The public defender was just He didn't need to be disrespectful. I think probably 21 the government wants to address the comments first. 22 you to take it serious. 23 attitude. 25 You were here. The But he decided he was So anyway, that's where I'm at. 24 He And I want You saw Deputy Vann's It wasn't good. MR. RYBARCZYK: I think he was at times short with the -- UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 6 of 30 Page ID #:844 6 1 THE COURT: I think he was most of the time short 2 until I started stepping in, which I didn't step in very much 3 because I think I needed to see that attitude. 4 going to correct it. 5 So I wasn't So he couldn't correct himself. MR. RYBARCZYK: Very well, Your Honor. In terms 6 of -- you've seen the briefs and I think you've articulated 7 that the Court does agree with the reasoning/rationale 8 generally that you need to look at the circumstances of the 9 stop in total. 10 What the defendant is doing -- and just so I'm 11 clear, I spoke to defense counsel this morning, and this 12 exhibit that she tendered I had not seen. 13 articulate every one of those cases in her other exhibit. 14 this is some new facts that -- 15 16 THE COURT: She did not So That's why I said that it may be broader than I -- 17 MR. RYBARCZYK: It is. And so the government didn't 18 have an opportunity to even look at that to prepare for that 19 response here. 20 So the government has analyzed all 13 of the reports 21 that the defendant has tendered and attached to their offer of 22 proof. 23 in its briefing which is you need to look at the totality of 24 the circumstances of each stop. 25 And it goes to the point that the government was making THE COURT: But I need to look at his credibility. UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 7 of 30 Page ID #:845 7 1 And if at one time he says looking up means -- based on my 2 training and experience means nervousness and then he says 3 looking down based on my training and experience -- I'm not 4 judging -- what I'm -- if I use it, it's not to change the 5 facts about what happened. 6 I can see -- I think the only thing that's disputed 7 in the stop is the rocking. You can't see -- it's been a while 8 since I looked at the video. But based on the briefs, it seems 9 that probably the only factual dispute is is he rocking or not. 10 And the defense makes the position you don't see the car 11 rocking and he weighs over 300 pounds. 12 But I think everything else -- you know, I don't 13 think anybody is disputing necessarily that he gave his license 14 fast. 15 No one is necessarily disputing that he said, "uh" before he 16 answered each time which I find particularly amusing because 17 lawyers do that all the time when they get nervous in here. 18 No one is disputing necessarily that he looked upwards. So I don't think you can use those other cases to 19 change the totality of the circumstances here. 20 saying -- and I agree with you. 21 whole thing saying I agree with the generic statement of the 22 law as to what I'm supposed to look at to determine whether or 23 not there was reasonable suspicion to prolong the stop. 24 25 But what I'm That's what I started the But what I'm saying in addition to that though is what's at the heart of this case though is do I accept his UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 8 of 30 Page ID #:846 8 1 training and experience to tell me what these other actions 2 mean. 3 and experience whether I should accept them or not accept them 4 in this case. So to me they inform his opinions based on his training 5 I don't think it changes the facts in this case. 6 just bears do I give the deputy any credibility when he uses 7 the same scenarios to come up with -- different scenarios to 8 come up with the same conclusion to support reasonable 9 suspicion. 10 It That's my point. MR. RYBARCZYK: Three points. The first point is in 11 terms of what's in dispute, as the Court is aware, the 12 defendant did not dispute that he was rocking back and forth in 13 his declaration. That factual dispute is not in the record. 14 THE COURT: I'm not fresh -- 15 MR. RYBARCZYK: 16 THE COURT: 17 MR. RYBARCZYK: So that's not in the record. I said from the briefs. And I appreciate that. So that's 18 not in the record, and the defendant does not dispute that in 19 his declaration. 20 Second, I think there is another thing that you 21 can't see on the video, and I think that's the looking up just 22 to make sure the Court is aware. 23 defendant -- 24 25 THE COURT: Deputy Vann observed the At this point, for purposes of the analysis, I'm saying -- I'm not disputing that's not true or -- UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 9 of 30 Page ID #:847 9 1 2 MR. RYBARCZYK: clarify for the Court. 3 THE COURT: Fair enough. I just wanted to The second point is -Sorry to interrupt. But I think that 4 bears repeating. 5 to dispute the facts that -- the observations that are made by 6 Deputy Vann. 7 of the conclusions or the opinions based on training and 8 experience. 9 I'm not using any of this other information What I'm using this is to look at the credibility MR. RYBARCZYK: And that goes to my second point, 10 Your Honor, which is from Arvizu, the Supreme Court case that 11 we cited, which did state specifically that facts in some cases 12 that otherwise may be completely innocent and may be completely 13 inconsistent, in fact, with criminal conduct can in different 14 instances suggest to a trained officer that there's criminal 15 activity afoot looking at the rest of the circumstances in the 16 case. 17 So in this case, what we have is a unique set of 18 circumstances. And to take that in or what his observations 19 are in other cases where it may be a different observation, you 20 have to look at all the facts in that particular report to 21 determine why he's coming to the observation, that looking down 22 in this instance versus looking up is suspicious. 23 It's not one isolated fact. It goes to the divide 24 and conquer analysis that the defendant is really pushing in 25 this case. And as the government pointed out, many of the UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 10 of 30 Page ID #:848 10 1 cases that the defendant cited where -- not explicitly 2 overruled by Arvizu, but the logic of divide and conquer was. 3 THE COURT: Why do you say this is -- why do you 4 call this a divide -- I can see the divide and conquer when you 5 isolate specific instances. 6 with divide and conquer. 7 But I'm not sure I can equate this It's more -- I'm trying to come up with a decent 8 example. This isn't medical science. So whatever the 9 officer's training is based on, based on my training and 10 experience -- so it's not like, if a doctor testifies in one 11 case a high fever indicates pneumonia, and then he says no 12 fever indicates pneumonia, below average fever indicates 13 pneumonia, I don't know. 14 That seems kind of funny. In the same respects, I think what you are saying 15 when you say divide and conquer, you say that the professional 16 opinions based on training and experience can't be collaterally 17 attacked in any way. 18 19 MR. RYBARCZYK: I'm saying that they can't be attacked -- 20 THE COURT: 21 MR. RYBARCZYK: 22 How would they be attacked in any case? You can ask whether he's had other instances of this occurring and -- 23 THE COURT: 24 MR. RYBARCZYK: 25 I'm not suggesting that, Your Honor. specific instances. That's what they want to do. I guess I'm saying is you can't use Their training and -- UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 11 of 30 Page ID #:849 11 1 THE COURT: I can get around that. I used to be a 2 good lawyer. I could say -- I could fashion all of these as 3 hypotheticals. 4 "assume," and you would just go through and you would give the 5 Gonzalo Gonzalez example. 6 MR. RYBARCZYK: I could fashion every one of these examples as Certainly. And I think that's been 7 done in other instances in suppression motions, that they have 8 articulated such hypotheticals, and it has been done by 9 lawyers. But here they are looking to use specific instances. 10 THE COURT: What happens if he says something 11 different to the hypothetical that he concluded in the other 12 case? 13 impeachment like, you don't know what you are talking about 14 because I thought in Gonzalo Gonzalez you said X and now you 15 are saying Y? 16 explain. And why can't you use that other case as a little bit of 17 What's the difference? MR. RYBARCZYK: And then allow him to The government's position is that 18 that, again, goes to the totality of the circumstances in each 19 of the cases. 20 And the government's understanding at least from the 21 initial -- when we were here before the Court on June 5th 22 earlier this year was that the defendant was going to proffer 23 reports that showed almost identical reasonable suspicion. 24 25 THE COURT: litigation. So it's a moving target. Litigation is I don't think my marching orders were -- that was UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 12 of 30 Page ID #:850 12 1 their theory now. 2 better theory. 3 This is a different theory. I think it's a But I am still looking -- even if I have that, I am 4 looking at the totality of the circumstances. 5 saying is that this is not impacting the totality of the 6 circumstances. 7 credence or weight I give to his professional expert opinion 8 that certain behavior warrants conduct that creates reasonable 9 suspicion. 10 But what I'm This is impacting how much credibility or MR. RYBARCZYK: So take, for instance, Your Honor -- 11 so let's go through some of the examples that defendant 12 proffered. 13 defendant cites this -- 14 15 So, for instance, you've got a -- on Vann 15 the THE COURT: Do you have a page number from the -- I didn't have the chart. 16 So I organized it -- MR. RYBARCZYK: No, I have a different chart. In 17 preparing for the hearing, I assumed that defendant would have 18 proffered all their reports and not added additional reports at 19 9:15 on the day of the hearing. 20 THE COURT: 21 your sur-reply. 22 not a sneaky person. 23 her client. 24 and girls. 25 9:15. Just stop it. You know, you did that in There's no bad motives here. Ms. Wakefield is And she's just doing the best she can for I'm really kind of tired -- we are all big boys You got something at 9:15. This is a criminal case. I got something at It's not a civil case. UNITED STATES DISTRICT COURT We are Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 13 of 30 Page ID #:851 13 1 going to deal with it because we are going to do the right 2 thing. 3 Whether we got it two minutes before trial, I'm 4 sorry. 5 are big boys and girls, and we can deal with late filings, and 6 the target is a little moving. 7 easy for me. 8 make my life more difficult. 9 I don't like that behavior. Not in this case. I know it's not easy. But we It's not Ms. Wakefield I don't think is doing anything to She's just defending her client. Anyway -- 10 MR. RYBARCZYK: Fair enough, Your Honor. Looking at 11 page 7 of the defendant's brief, they are talking about why the 12 defendant -- the extremely nervous conduct fumbling for the 13 credit cards. 14 or ID. 15 would have happened, and it seemed suspicious to him. 16 In that case the driver has no driver's license So, I mean, it's not inconsistent that that conduct And so in a different instance they also cite on 17 page -- the recycled profile theory that they advanced in their 18 opening offer of proof on page 9 of their brief. 19 to Vann 122. 20 case thought that the quick registration and insurance 21 retrieval was quick. 22 recycled profile theory. 23 And that goes Specifically it says that Deputy Vann in that Again, saying that there's some sort of But in that case, the defense -- the defendant 24 admits in the report that it's actually the passenger who is 25 doing that in that case and not the driver, and that's why he UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 14 of 30 Page ID #:852 14 1 thought it was particularly odd from the report. 2 So there are facts like that -- 3 THE COURT: 4 here's what I'm concerned about. 5 about the magical psychological powers of Deputy Vann. 6 without these. 7 suspicion would be born out by looking at other cases. 8 9 Well, I guess that's great -- I mean, Just on my own, I have doubts So just So I wanted to see whether or not that It seems to me that you already have good -- if I allow that, it's not going to be very long cross-examination I 10 don't think. 11 little bit. 12 very good responses as to why you are arguing that 13 cross-examination is useless because of these different 14 situations. 15 I don't really want -- I just want to see a And so all of a sudden I think you've come up with It seems to me, as to the license, you may have them 16 beat. 17 or view of Deputy Vann's psychological powers, I want to hear 18 more about it, and I want to test his psychological powers as 19 he relates them to other cases because I think it's sort of 20 babble speak. 21 But it seems to me that based on my preliminary opinion I just think Deputy Vann could stop me and find 22 reasonable suspicion based on -- I don't know -- I got nervous 23 because it was Deputy Vann stopping me. 24 You have a third point? 25 MR. RYBARCZYK: Yes, Your Honor. The third point UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 15 of 30 Page ID #:853 15 1 was, as the government pointed out in its sur-reply, that 2 Rodriguez doesn't require that you can't ask any unrelated 3 questions during the traffic stop. 4 THE COURT: I'm on board with that. As you are 5 getting the license, I think you -- what you are saying to me 6 is, you know, "Can I have your license?" 7 handing the license, you say "Do you have anything illegal in 8 the car? 9 are writing the ticket; right? 10 Where are you coming from?" MR. RYBARCZYK: And as you are You know, even as you Exactly as you pointed out, Your 11 Honor. That's exactly what happened in this case. 12 him briefly to come out of the car. 13 says you can do that for officer safety. 14 THE COURT: He asked And Pennsylvania v. Mimms He's never articulated -- did he say he 15 asked him to leave the car in this case because of officer 16 safety? 17 MR. RYBARCZYK: 18 THE COURT: 19 MR. RYBARCZYK: He did not say that, no, Your Honor. He did it because he was fishing. Your Honor, he asked him to 20 remove -- come out of his car. 21 you can do that. 22 THE COURT: But Pennsylvania v. Mimms says Well, under these circumstances, maybe 23 he can't. I don't know. It seems to me, if you stopped him 24 because speeding, weaving, whatever and you are not worried 25 about your safety, why are you prolonging the stop even by 30 UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 16 of 30 Page ID #:854 16 1 seconds? 2 MR. RYBARCZYK: In this case, Your Honor, I think he 3 believed there was some additional questions he had to ask and 4 he hadn't written a warning yet. 5 THE COURT: You make that point a lot. So basically 6 an officer can delay doing what he set out to do because he can 7 buy himself 30 more seconds? 8 9 MR. RYBARCZYK: That's not what I'm suggesting. traffic stop hasn't concluded yet by not giving the warning. 10 THE COURT: I don't know. I'm driving along. 11 speeding in my red car. 12 because I don't like being stopped even today. 13 driver's license and registration. 14 of the car. 15 16 17 He pulls me over. I give him my He then asks me to get out I don't think I'd be a happy camper. MR. RYBARCZYK: I'm I get nervous Would you? Your Honor, I haven't been in that situation. THE COURT: I haven't either because it doesn't 18 happen unless somebody has reasonable suspicion or has an 19 officer safety issue. 20 The Now, if -- MR. RYBARCZYK: Well, Your Honor, the government's 21 position, and it stands by that position, which is that general 22 proposition that the totality of the circumstances controls in 23 this case, and it's going to stay with that argument. 24 25 THE COURT: Okay. I would say this though. Ms. Wakefield, anything to add? And I haven't read your chart. UNITED STATES DISTRICT COURT I Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 17 of 30 Page ID #:855 17 1 think you've got to -- you've heard where I'm at, and I think 2 that your cross-examination, if I allow it, needs to be 3 pinpoint and not long and just you know what the theme needs to 4 be. 5 of multiple instances. I think it's clear without dragging me through three hours 6 I think there's some points to be made if you can 7 make them. Maybe after hearing the government, you may not 8 think you can make the points you need to make on the driver's 9 license. I don't know. I'm just -- I think, if I do allow 10 this, I'm asking you to be surgical. 11 MS. WAKEFIELD: 12 13 Yes, Your Honor. And I will try my best to do that. I have a few points to make, and I'll be brief. But 14 I think the Court has really hit at the issue here which is the 15 factors that Deputy Vann has proffered and his impressions and 16 inferences are all highly subjective. 17 objective factors that you would expect to see or you see in 18 other cases -- 19 THE COURT: There aren't the type of I'm sorry to -- but it would be easy 20 like the example like you see multiple air fresheners. You 21 know, that's -- maybe the common lay folk -- and I hadn't 22 thought about it until that example because I've never seen it 23 as a reason for prolonging a stop. 24 once you hear it, it's an objective -- you know, six 25 air fresheners. But it makes perfect -- but They are trying to hide an odor of some kind. UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 18 of 30 Page ID #:856 18 1 Not everybody has six things. 2 trying to hide? 3 contraband smell. 4 What kind of odor are they Marijuana, this -- you know, some kind of MS. WAKEFIELD: Exactly. And I think that's 5 something where we could take that factor and look at an 6 officer's training and experience and say, okay, every time 7 there's multiple air fresheners, he says there's reasonable 8 suspicion or that causes him to ask more questions or something 9 like that. 10 But we don't have any of those objective factors 11 here. 12 Mr. Manjarrez handed his driver's license or his registration, 13 pausing or looking up, eye contact. 14 all highly subjective, and his inferences are not really easily 15 measured or capable of sort of being measured as some sort of 16 consistent profile. 17 They are pretty much all subjective, how quickly Those kinds of things are So I think that's why these reports are so relevant 18 is it shows that this is really a moving target. 19 consistent profile. 20 behavior, and he doesn't consistently apply what he proffers 21 here as a profile. 22 reports are highly relevant. 23 There's no Deputy Vann is not an expert in human So I think that's exactly why these arrest THE COURT: How long do you think it will -- without 24 having -- you've heard my comments now. How long do you think 25 the cross-examination will take with regard to these instances? UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 19 of 30 Page ID #:857 19 1 MS. WAKEFIELD: I'm not sure. I tried to make -- as 2 the Court noted, I tried to make this chart as some sort of 3 outline of -- 4 5 THE COURT: I wish I had gotten the chart yesterday actually. 6 MS. WAKEFIELD: 7 THE COURT: 8 9 Yeah. Because I kind of was doing the same thing, and it's much better organized than what I prepared. MS. WAKEFIELD: Exactly. And so I don't anticipate 10 asking about every sort of possible, you know, stop or every 11 possible inconsistency. 12 categories of inconsistencies and with specific examples. 13 those would be the categories that I would be looking to ask 14 Deputy Vann about. 15 I think I've organized it into But I mean, if the Court -- if there's a way of sort of 16 avoiding cross-examination, if the Court wants to accept the 17 arrest reports -- 18 THE COURT: Well, I thought about that, but I 19 think -- I've thought about that, and I would throw that out to 20 the government. 21 defined way to go because then they can point out to me just 22 what they pointed out, and that is this isn't inconsistent 23 because in that case it was the passenger. 24 this particular case, he didn't have a driver's license. 25 any comparison is, again, useless. But I think that then -- that might be a That's useless. UNITED STATES DISTRICT COURT So In Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 20 of 30 Page ID #:858 20 1 I don't mind -- I thought about that. And I think 2 the question then for -- the strategy decision for the 3 government whether accepting me to do that, then that doesn't 4 allow Deputy Vann to explain. 5 It seems to me that the government can probably -- 6 at least on the two examples we just talked about they just did 7 it. 8 didn't have a driver's license. 9 In this case I thought it was really odd. That Deputy Vann would say, well, wait a minute. This guy That's why it was suspicious. That wasn't 10 significant to me because it was the passenger who was getting 11 the information not the driver. 12 So I thought about that, and then I thought, well, 13 maybe the government wants Deputy Vann to be able to explain 14 this. 15 submit a brief as to -- your cross-examination brief and they 16 respond, and then I kind of decide whether or not I want to use 17 those to either conclude that his conclusions or opinions are 18 valid or then use them to buttress a concept that his opinions 19 are invalid. I would prefer that process of taking these -- you 20 Government? 21 MR. RYBARCZYK: Your Honor, I think you rightly 22 point out, since I haven't spoken to Deputy Vann in over five 23 months because he's still on cross-examination, I don't know if 24 that's the right approach. 25 every reason for what's happening in those instances from what I don't know that I can divine UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 21 of 30 Page ID #:859 21 1 are the totality of the circumstances. 2 would be in a great position to do it. 3 4 THE COURT: Right. So I don't think I So then you'd want to hear from Deputy Vann. 5 MR. RYBARCZYK: 6 THE COURT: Correct, Your Honor. That's sort of what I thought going 7 through this. 8 have in your mind -- you wouldn't lead him but basically you 9 know where you want to take him in the sense of, well, in that 10 That would be part of your redirect. You would case the guy didn't have a valid driver's license. 11 All right. I think that answers that question. 12 MS. WAKEFIELD: I think -- does the Court have any 13 questions? 14 but I don't know that I need to go into that. 15 I had a longer argument and presentation prepared, THE COURT: Unless you think I'm missing something. 16 I don't know. 17 I think your approach is a little broader than what I'm saying 18 I'm going to use it for necessarily. 19 I think that's -- I think the bottom line is -- But I think at the end of the day based on my 20 comments before and my comments now, I think, since I'm the -- 21 I mean, if I believe Deputy Vann and I accept his opinions, the 22 motion to suppress is denied, isn't it? 23 24 25 MS. WAKEFIELD: Well, I don't want to waive anything. THE COURT: But the bottom line is I have to decide UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 22 of 30 Page ID #:860 22 1 what I -- as in a lot of motions to suppress, if I believe the 2 officer, the motion to suppress is denied because I accept that 3 there was a cracked windshield or there was something on the -- 4 a rosary on the rearview mirror that obstructed sight. 5 It's not that different than other -- it's a little 6 different based on my training and experience as opposed to I 7 was driving along and I saw a cracked windshield. 8 little different. 9 going to accept the opinions based on the deputy's training and 10 11 It's a But I think the bottom line is whether I'm experience at the end of the day. MS. WAKEFIELD: Yes, Your Honor. I think the only 12 difference here is we have the video evidence. 13 able to review that independently and determine how much weight 14 to give to Deputy Vann's sort of subjective interpretations of 15 what happened. 16 So the Court is So that's another difference. THE COURT: And then I'm interested in pulling this 17 all together and looking at the video again and read the 18 transcript again, have this cross-examination and then probably 19 have one last briefing round to hear either argument or an 20 additional brief how -- what does this whole thing mean. 21 Okay. So the -- 22 MR. RYBARCZYK: Your Honor, I had just one point. 23 Just to make clear for the defendant, there is a report that 24 they put into Exhibit B at Vann 4. 25 by Deputy Vann. It's actually not authored It's authored by Deputy Leitelt. UNITED STATES DISTRICT COURT And it's Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 23 of 30 Page ID #:861 23 1 actually Deputy Leitelt's observations and not 2 Deputy Vann's. 3 sum and substance that we end up using here. 4 I just want to make sure that's not part of the THE COURT: Well, I think you are going to have to 5 help me at some point in time during the -- I'm going to allow 6 cross-examination. 7 Deputy Vann's observations. 8 say "objection, this is not Deputy Vann's observation." 9 I want it surgical. I want it based on So if I miss it, I expect you to Because I think at the end of the day even once I 10 get this chart and I review the exhibits, both of you are going 11 to have a better grip of them on the day of hearing. 12 the case -- I want this to be as closely related to the 13 observations in this case, the opinions based on this case. 14 If that's And based on the categories, it seems that the 15 defense has the categories limit correct. 16 of these incidents support an examination in this case, I'm 17 just going to have to see it and either stop it because I'm not 18 interested -- if it's not helping me determine the credibility 19 of the opinions, I'm going to stop it. 20 going to let it -- if I'm not sure, it's probably going to go 21 forward. 22 it really wasn't helpful to my credibility determination. 23 Whether or not each If it's helping me, I'm It's not like we have a jury here. I allowed it, but But I think it's up to -- I don't expect 24 Ms. Wakefield to go off the deep end and go broad, and then I 25 don't expect you to object to everything. But I expect you to UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 24 of 30 Page ID #:862 24 1 stand up and object when -- exactly the point you just made, if 2 it's not Deputy Vann's observation, you shouldn't be talking 3 about it. 4 determine Deputy Vann's observations and his conclusions based 5 on those observations which I think is the issue in this case. Somebody else's observations is not helping me 6 MR. RYBARCZYK: Fair enough, Your Honor. And the 7 other thing I would request, because he's on cross-examination, 8 we haven't talked with him. 9 give us a brief recess to talk to him because there's 83 -- 10 THE COURT: After cross ends, would the Court I think that will be helpful to me 11 because in a sense I think that will help the redirect in terms 12 of it being more precise. 13 Not fine? 14 MS. WAKEFIELD: 15 Of course not. My only concern with that would be sort of -- 16 THE COURT: Coaching, whatever. 17 MS. WAKEFIELD: 18 THE COURT: Exactly. It's the same concerns everywhere. 19 Why don't you -- let's see what happens and make the request at 20 that point, and I'll decide. 21 MR. RYBARCZYK: Very well, Your Honor. 22 know -- is there a universe? 23 reports? Do we Are we talking about all 83 Are we talking about the ones in this Exhibit B? 24 THE COURT: I certainly don't want to hear about 83. 25 MS. WAKEFIELD: I don't plan on crossing on all 83. UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 25 of 30 Page ID #:863 25 1 But I will in my preparation for the cross-examination go 2 through everything again. 3 limited. 4 THE COURT: So I don't want to necessarily be I think it's fair -- can maybe 24 hours 5 before the hearing, can the Court and the government have the 6 reports that you are going to focus on? 7 MS. WAKEFIELD: 8 THE COURT: 9 MR. RYBARCZYK: 10 I think -- Is that enough time? That's fine, Your Honor. As long as I have some time versus 45 minutes before. 11 12 Certainly. MS. WAKEFIELD: That won't be shared with Deputy Vann. 13 THE COURT: Right. He'll be able to start preparing 14 his redirect and maybe his thinking of an objection because it 15 doesn't relate to Deputy Vann's observations. 16 minimum 24 hours for getting ready to be able to object or 17 redirect. I think a 18 You don't know Deputy Vann's schedule. 19 to have a stipulation and order with regard to when the next 20 hearing date is? 21 22 MR. RYBARCZYK: Do we want I don't know it, Your Honor. I can check and try to get something into the Court today. 23 THE COURT: It doesn't matter -- I can set a date 24 today but the date might not work because the witnesses are not 25 available. Was there another witness? Who else do we have UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 26 of 30 Page ID #:864 26 1 besides Deputy Vann? 2 MR. RYBARCZYK: I believe the government would at 3 least get an opportunity to cross Mr. Manjarrez on his 4 declaration. 5 the defendant has any additional witnesses. 6 me of any. 7 But that's I think the only -- I don't know if THE COURT: They haven't told Do you anticipate much other than cross 8 of Deputy Vann, redirect, some cross of the defendant's 9 declaration? 10 MS. WAKEFIELD: Not much more beyond that. 11 I'm sort of new on the case. 12 everything. 13 14 Again, But I'll take a look at If there's something else I plan on -THE COURT: So we will be able to wrap this up in a morning or an afternoon? 15 MS. WAKEFIELD: 16 THE COURT: A day. You have to be careful because I've 17 already told you where my mind is going. 18 to be careful not to lose that momentum or the track. 19 told you the four areas that I'm concerned about. 20 really want the motion to suppress to get granted, you have to 21 think about me writing that order and what specific examples 22 that I could use in that order to support not accepting the 23 opinions. 24 25 So I think you have I've So if you So it's not going to be helpful to me to go through 84 -- I'm not going to cite 84 instances. If I do cite, it's UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 27 of 30 Page ID #:865 27 1 going to be one, two, three. 2 that's actually going to work that way. 3 in this case looking up means you are nervous and then you have 4 another case looking down and there's no differences -- looking 5 down makes you nervous and looking straight in your eye makes 6 you nervous, that's all I need to, I think, support a 7 conclusion that that opinion is not acceptable. 8 15. 9 four areas, I'm not quite sure why we need more than eight to 10 Again, we haven't said that So if in one instance I just need two or three on each example. I don't need So if there's 12. 11 MS. WAKEFIELD: Yes, Your Honor. I understand. 12 Then I guess on -- I have to take a look again at 13 the declaration that was submitted for Mr. Manjarrez, but I 14 believe it only had to do with the initial traffic stop. 15 don't know that that's still an issue at play. So I 16 THE COURT: 17 since I looked at it. 18 I don't think -- you know, whether or not -- again, I haven't 19 looked at the tape. 20 I recall, there's not something that shows cutting off 21 somebody. 22 I'll go back and -- it's been a while I don't think -- at this point in time, Whether or not it supports -- you know, if I think the tape does -- if I just had the tape, 23 that I think that the tape would support the stop at the end of 24 the day. 25 whether the stop was proper. So I'm not -- I don't think this case is about From my perspective, the stop was UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 28 of 30 Page ID #:866 28 1 proper. 2 at now. 3 4 There was reason to make the stop. That's where I'm The question that where I'm at is whether it was illegally prolonged. That's where I'm at. 5 MS. WAKEFIELD: 6 THE COURT: 7 hearing. 8 day. 9 through Friday. Yes, Your Honor. Maybe by next Thursday pick a date for a Don't set it on a Monday because I won't have half a Half a day, not a day on Monday. So set it Tuesday Give me at least a week -- don't just set it 10 the following -- I want to make sure that, if I'm in trial, I 11 tell them I'm going to break off and -- because I'm not going 12 to continue this. 13 14 15 16 17 We are just going to go. MR. RYBARCZYK: We have obviously the Thanksgiving holiday coming up too. THE COURT: Right. Just give me enough lead time if I'm in trial. MR. RYBARCZYK: So I understand, Your Honor, at this 18 continued hearing, are we going to do argument at that hearing, 19 or are you going to reserve it until a later date or -- 20 THE COURT: I guess it depends how much time we have 21 and what I feel -- we've had a lapse in time. 22 transcript again last week. 23 going to have to look at it again to refresh. 24 25 So I read the So whenever we have that, I'm So it may be helpful to both or -- I think where I'm at now -- I may not be that way then. But I think what might UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 29 of 30 Page ID #:867 29 1 be more helpful is get the transcripts, do a final brief, and 2 then have argument. 3 might be the most organized for each side to be able to marshal 4 their arguments and have the facts right at their fingertips 5 and then come back and argue it. 6 prepare a brief and a week after that have argument on it. 7 There's been so many gaps in time, that MR. RYBARCZYK: Okay. Maybe like in a couple weeks We'll obviously prepare a 8 speedy trial stip because that's coming up against the current 9 trial date. 10 11 THE COURT: As long as this is going, this is excludable time. 12 MR. RYBARCZYK: Thank you, Your Honor. 13 MS. WAKEFIELD: Thank you. 14 THE COURT: 15 (At 10:42 a.m. the proceedings adjourned.) Thank you. 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Case 2:16-cr-00850-PSG Document 90 Filed 11/30/17 Page 30 of 30 Page ID #:868 30 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 5 I, MAREA WOOLRICH, FEDERAL OFFICIAL REALTIME COURT 6 REPORTER, IN AND FOR THE UNITED STATES DISTRICT COURT FOR THE 7 CENTRAL DISTRICT OF CALIFORNIA, DO HEREBY CERTIFY THAT PURSUANT 8 TO SECTION 753, TITLE 28, UNITED STATES CODE THAT THE FOREGOING 9 IS A TRUE AND CORRECT TRANSCRIPT OF THE STENOGRAPHICALLY 10 REPORTED PROCEEDINGS HELD IN THE ABOVE-ENTITLED MATTER AND THAT 11 THE TRANSCRIPT PAGE FORMAT IS IN CONFORMANCE WITH THE 12 REGULATIONS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES. 13 14 15 DATED THIS 27TH DAY OF NOVEMBER, 2017. 16 17 18 19 /S/ MAREA WOOLRICH ______ MAREA WOOLRICH, CSR NO. 12698, CCRR FEDERAL OFFICIAL COURT REPORTER 20 21 22 23 24 25 UNITED STATES DISTRICT COURT