Document 1616620

Case 1:20-cr-00330-PAE Document 1616620 Filed 02/24/22 Page 13 of 117 A-5827 370 C2rdau4 Berke - cross 1 forms a belief that a juror has engaged in misconduct, that 2 attorney is obligated to bring the misconduct to the attention 3 of the Court? 4 A. You're asking me an ethical question, a legal opinion. I 5 will tell you this -- 6 Q. Can you not answer that yes or no, Mr. Berke? 7 A. Well, I'd like -- 8 Q. I'm asking you a question, and I'll repeat it again. Maybe 9 you can't answer it yes or no; tell me if that's the case. If 10 an attorney forms a belief that a juror has engaged in 11 misconduct, do you believe that the attorney has an obligation 12 to bring it to the attention of the court? 13 A. I can't answer that yes or no. I can answer it, but I just 14 can't answer it yes or no. 15 Q. Really? You can't answer that question yes or no? That's 16 your testimony? 17 A. That's not how I would answer that question. 18 Q. Tell us how you would answer that question. 19 A. I will tell you that I have never confronted that issue at 20 trial in any trial I have done; that whenever I have an issue 21 that I think raises an ethical issue, I always do the same 22 thing. I always look to the ethics rules. I always look to 23 the ethics commentary. 24 I'm very familiar with the ethical rules. I'm 25 familiar with my obligations to my client, to the court, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009431 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 1616620 Filed 02/24/22 Page 18 of 117 A-5831 374 C2grdau4 Berke - cross 1 not. You're asking me to speculate. I'm just not comfortable 2 speculating. 3 Q. I think that's on your bucket list, to move up there, 4 right? 5 A. No, not at all. I'm just not comfortable speculating. 6 Q. Isn't more information better than less when you are trying 7 to make an assessment of possible juror misconduct and a 8 connection in names between a person who may be acting as an 9 imposter and a juror on trial? 10 MR. SHECHTMAN: Judge, I'm going to object on Mr. 11 Berke's behalf. 12 THE COURT: Overruled. 13 A. I wasn't making that assessment. 14 Q. I didn't ask you if you were making that assessment. Is 15 more information better when you are trying to find out whether 16 somebody who shares the same name as a suspended attorney is 17 the juror? Yes or no. 18 A. I'm going to tell you, Mr. Okula, it sounds like you're 19 arguing with me. It depends on what that information is. All 20 I can tell you is what I know from my personal experience. 21 From what I heard, it did not occur to me for a moment that 22 there was any issue with Juror 1 and the suspended lawyer at 23 the time. That's all I can tell you. I can't speculate or 24 answer your argument, I really can't. 25 Q. What is the type of investigation you'd do if you found a (212) 805-0300 DOJ-OGR-00009435 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 1616620 Filed 02/24/22 Page 18 of 117 A-5834 C2grdau4 377 1 THE COURT: Does the defendant Parse rest? 2 MR. SHECHTMAN: We do, your Honor. 3 THE COURT: Does any defendant have any additional 4 evidence to offer to the Court on this hearing? 5 MS. McCARTHY: Not from Mr. Field, your Honor. 6 MR. ROTERT: We do not, your Honor. 7 MR. SKLARSKY: No, your Honor. 8 THE COURT: Does the government have anything further? 9 MR. OKULA: Thank you, your Honor. We do not. 10 THE COURT: The government rests? 11 MR. OKULA: We do indeed, your Honor. 12 THE COURT: I would like to get some post-hearing 13 briefing from the parties. It seems to me that the simplest 14 way to do it would be to have the parties submit simultaneous 15 briefs and then I give you a very short responsive brief if you 16 felt it was necessary to respond to something that the other 17 side said. We'll fix a schedule in a moment. 18 Obviously, in the briefs I want the parties to provide 19 the Court with what they believe the strongest results are of 20 this evidentiary hearing. Second, in the post-hearing briefs 21 I'd like the question of whether the attorneys for Brune & 22 Richard involved in this matter would have satisfied their 23 ethical obligations if they failed to disclose the contents of 24 the July 21 letter and their complete investigation into Juror 25 No. 1. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009438 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 28 of 130 A-5713 256 C2GFDAU1 Brune - direct 1 A. Nancy is a paralegal from the San Francisco office. 2 Q. You also had someone with the title of managing clerk, is 3 that correct? 4 A. Correct. 5 Q. What does the managing clerk do for your office? 6 A. He is, he works primarily on the civil side, and is 7 responsible for making sure that our filings go in properly. 8 He also does sort of the last cite check on any brief that goes 9 in, and he just helps out in any way on to sort of make sure 10 things get to court and get filed properly. 11 Q. What's his name? 12 A. Ken Renta. 13 Q. And you also, I take it, have secretaries and other 14 administrative staff at your firm, correct? 15 A. We have one secretary at the firm. 16 Q. And with regard to this specific case, you also hired 17 outside help, is that correct? 18 A. Can you explain? By "help," do you mean were there 19 contract lawyers or some other kind of help you're thinking of? 20 Q. Let's talk about the jury consultants. 21 A. Okay. 22 Q. Did you specifically hire a jury consultant for this case? 23 A. I hired Dennis Donahue. 24 Q. And Mr. Donahue was present during voir dire, correct? 25 A. He was. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009317 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 52 of 130 A-5737 C2GFDAU1 Brune - direct 280 1 Q. And as best as you can recall and with as much precision as 2 you can muster, what exactly did Ms. Trzaskoma say to you as 3 you were headed to 52 Duane? 4 A. So the three of us were together and Ms. Trzaskoma said 5 something to me along these lines: You know, I'm starting to 6 wonder in light of the juror note whether this Juror No. 1 7 could be the same person as this suspended lawyer. 8 And Ms. Edelstein said, "Well, what did she say in 9 voir dire?" And Theresa reminded us of the stay at home wife 10 and the education and the other aspects of the voir dire and 11 she reminded us that this person had some kind of a personal 12 injury suit in the Bronx. And at that point, I think it was 13 Ms. Edelstein, but I may have been the person who said it, one 14 of us said well, that makes perfect sense. That explains why 15 she's making references to these concepts. They must have been 16 at issue in her case, and here I'm having a little bit of a 17 hard time separating what I thought and what was said, but I 18 either thought or said, well, you know, Judge Pauley will set 19 her straight in the jury charge and, you know, it's sort of 20 just a silly note. 21 I thought that it all made sense because of the 22 personal injury suit and that no lawyer would be so dumb as to 23 think that vicarious liability or respondeat superior had any 24 place in a criminal case. 25 So then, so back to the conversation, and again I got SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009341 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 53 of 130 A-5738 281 C2GFDAU1 Brune - direct 1 the same problem of trying to remember what was said versus 2 what was thought, but I think what was discussed is, look, it's 3 not her. She's sworn before Judge Pauley, the note doesn't 4 change the picture and, you know, this is kind of crazy. You 5 can't start sending a private investigator out on a juror. She 6 said she's someone else, she seems like a housewife from 7 Bronxville. It would be unfathomable or inconceivable or 8 something for a person who was in fact a lawyer to have sworn 9 under oath that she was someone else. It was something where 10 we discussed it and concluded that it made no sense, and Juror 11 No. 1 was who she said she was. 12 Q. So just so I'm clear, Ms. Brune, Ms. Trzaskoma did tell you 13 in that conversation that she thought Juror No. 1 could be 14 Catherine Conrad the suspended attorney? 15 A. What she said is that note makes me wonder if it could be 16 the same person. 17 Q. And are you telling me that Ms. Trzaskoma made no mention 18 whatsoever of the Westlaw report that she had found? 19 A. I'm confident that's so, and here's why. Laurie Edelstein 20 is the kind of person who will always kind of say, well, show 21 me the case, she show me the document. She's extremely thorough, 22 and if she had referenced the document in the conversation 23 that's what Ms. Edelstein would have said. So I know that 24 there was no reference to it in the conversation. 25 Q. So even as you're standing there, Ms. Brune, the thought SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009342 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 63 of 130 A-5751 294 C2grdau2 Brune - direct 1 A. She certainly was aware of what had been done, that's 2 correct. 3 Q. Are you shying away from using the word "investigate" to 4 describe what it was that you and Mr. Benhamou and Mr. Kim and 5 Ms. Stapp were doing on the morning of May 12th? 6 A. It's not that I'm shying away. I just don't think it is 7 accurate. To me "investigation" means more than looking at a 8 database search. What I think of as an investigation is what 9 we ended up doing once we received the jury letter. 10 Q. You also stated in your memorandum at page 32 note 13 that 11 the defendants had no basis to inquire whether Conrad was lying 12 in response to the Court's questions. That is just wrong, Ms. 13 Brune. 14 A. I have I think already said that having reflected on all 15 this, I think there are a number of things that I wish had been 16 said differently. What I was trying to convey to the Court in 17 the brief was the reality, which is that we didn't think it was 18 the same person and we were shocked when we received the note 19 and found out about the phone number matching. 20 Q. Had you seen the email traffic at that point in time when 21 you filed the brief, Ms. Brune? 22 A. No, I had not. 23 Q. But you know now that Ms. Trzaskoma knew about that email 24 traffic, correct? 25 A. She did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00338 Document 1616620 Filed 02/24/22 Page 68 of 130 A-5754 297 C2grdau2 Brune - direct 1 A. What she did was what the judge had sort of given people 2 the option of saying that they would do, which is that she said 3 that she would submit a letter, and then we worked very hard to 4 submit a letter that was accurate. 5 MR. DAVIS: Mr. Wooten, could I have Government 6 Exhibit 9, page 12, please. 7 Could I have a moment, your Honor? 8 THE COURT: Take your time. 9 Q. Can you see it up there? 10 A. Yes. 11 Q. Do you see where Ms. Trzaskoma, in response to the Court's 12 inquiry, said, "Your Honor, we were not aware of the facts that 13 have come to light, and I think if your Honor deems it 14 appropriate, we can submit a letter"? Correct? 15 A. She did say that. 16 Q. One of the facts that had come to light was the very same 17 suspension opinion that she had found before voir dire ever 18 started, correct? 19 A. I think what she is trying to convey there -- 20 Q. That's not my question. 21 A. I'm sorry. If you could say it again. 22 Q. I'm just asking a very straightforward question, Ms. Brune. 23 A. I know it, but it's not a yes or no, I don't think. 24 Q. Sure it is. The question is, one of the facts that came to 25 light that you attached was the Westlaw report, correct? You SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009358 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 70 of 130 A-5755 C2grdau2 Brune - direct 298 1 attached that to your July 21st letter, correct? 2 A. When we submitted the letter, as she had promised to do, we 3 certainly attached the Westlaw opinion. 4 Q. That was a fact that had come to light, correct? 5 A. Yes, that's correct. 6 Q. She's telling the Court, we were not aware of them, clearly 7 trying to imply that you all found this well after the trial 8 was over, correct? 9 A. I don't think that's what she meant to imply at all. I 10 think what she is saying is that we were going to submit a 11 letter and the plan was then to submit a letter laying it out, 12 which is what we did. 13 I don't believe Ms. Trzaskoma was trying to mislead 14 the Court. I think she would have been not as precise as she should have 15 been, and she would have done better to say we are going to 16 submit a letter, but I don't believe she was trying to mislead 17 the Court. Indeed, we laid it out in the letter. 18 Q. Let me stop you there. You are so far beyond the question 19 that I asked that I would like to get us back on track, if I 20 could. In your brief you told this Court and painted a picture 21 like the beginning of your knowledge was the letter from Ms. 22 Conrad. You omitted everything that had happened prior to 23 that, correct? 24 A. I believe that it's true that our knowledge came after we received the letter. That's what the brief was intended to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009359 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 75 of 130 A-5760 C2grdau2 Brune - direct 303 1 Q. The question was that you were willing to provide a 2 complete and accurate set of facts if and only if the 3 government asked, is that what you are saying? 4 A. No, that's not what I'm saying at all. I tried very hard 5 to be accurate in the brief that we submitted. It has the 6 shortcomings that we have talked about. 7 Q. It has material omissions, Ms. Brune? 8 A. I certainly have tried to be accurate. 9 Q. It has material omissions, correct? 10 A. I do not believe that it was written with the goal of 11 making a material omission. I believed then and believe now 12 that the standard is actual knowledge. We did not have actual 13 knowledge or anything near that. We were shocked when we 14 received the letter. 15 Q. It has material omissions in it? 16 MR. SHECTMAN: Asked and answered. 17 MR. DAVIS: No, I don't believe she has answered it, 18 your Honor. 19 THE COURT: Overruled. 20 A. I did not believe that it had material omissions in the 21 sense that anyone writing the brief or in my case signing the 22 brief intended to make material omissions. I think that what 23 we were trying to do was we were trying to describe the post- 24 letter investigation that we undertook and we were trying to 25 convey what is accurate, which is that it is the letter that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009364 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 78 of 130 A-5757 C2rdau2 Brune - direct 300 1 It's a simple question. 2 A. The standard under McDonough is actual knowledge. We 3 didn't know. I don't think it is material to the legal 4 analysis. That having been said, I think if we had to do it 5 over again, the equivalent of the July 21st letter should have 6 been submitted alongside the brief. I missed the issue of what 7 the government's position was going to be. 8 Q. You're familiar, are you not, Ms. Brune, with the cases 9 subsequent to McDonough that have held that full knowledge is 10 not required, that defense counsel has an obligation to bring 11 potential misconduct to the Court's attention so that the court 12 can deal with it, correct? 13 A. I've certainly read a lot more of the waiver cases since 14 this whole issue has been joined. As an ethical matter, 15 though, the standard is if the lawyer has actual knowledge of 16 juror misconduct. We did not have actual knowledge of juror 17 misconduct. Indeed, we believed, erroneously it now appears 18 for certain, there was no juror misconduct. 19 Q. I wasn't asking about the New York ethical rule that I 20 think you're referring to, Ms. Brune. 21 A. I'm sorry. If you asked me about an ethical matter, that's 22 my understanding. 23 Q. I'll withdraw the question. You acknowledged in that July 24 22nd telephone call that you, your firm, or defendant Parse, 25 was differently situated than other defendants, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009361 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 85 of 117 A-5928 CAC3PARC 26 1 But the real question is, did Mr. Parse know that that was 2 defrauding the government. Right. 3 Look, the avalanche of work here was in December. But 4 the question is, if you made a mistake, like in my example, can 5 you undo it. And you have to appreciate what the government 6 has said to you today. It has essentially said if it is a 7 broker's mistake, like in my hypothetical, then maybe a 8 reasonable broker could think you could undo it. But if it is 9 a lawyer's mistake, you can't. And that's a very different 10 version of the annual accounting rule than I've ever heard 11 before. Right. And if my hypothetical is one in which a 12 reasonable broker could think leave it up to the tax lawyers, I 13 am not sure what happened in this case isn't in that same 14 category. 15 We ended up with an argument about the contents of the 16 note and how your Honor should interpret them to show whether 17 there was prejudice here. All of this began with the 18 government saying to us be careful, Rule 606(b) has its limits. 19 The one thing I know, and the Third Circuit case in Breakiron 20 is quite good on talking about whether one looks at this 21 subjectively or objectively, you can't draw inferences from 22 that juror's note in deciding whether there was prejudice here 23 for two reasons. One, 606(b) precludes it, and two, that note 24 was written by Catherine Conrad and I still don't think the 25 United States wants to be standing up in a court and saying United States Southern District Reporters, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 88 of 130 A-5773 316 C2GFDAU3 Brune - redirect 1 Q. And none of these pieces of information would have been 2 important to you, is that what you're saying? 3 A. What I'm saying is, is this thing to me looks, and I think 4 would have looked had I seen it at the time, as kind of like a 5 credit report, and I think it would have confirmed what I 6 thought I already knew, which is that there were two people who 7 had the same name. Now that we know the truth, it seems like 8 this is information that could point the other way, but I think 9 if I had it I wouldn't have seen it as changing the picture 10 that we had. 11 Q. And you wouldn't have chosen to investigate? 12 A. I would not. 13 Q. Despite your training as an AUSA conducting many Grand Jury 14 investigations? 15 A. That's right. 16 MS. DAVIS: No further questions. 17 MR. SCHECTMAN: Just one, Judge. 18 RECROSS EXAMINATION 19 BY MR. SCHECTMAN: 20 Q. Ms. Brune, the Social Security numbers are redacted from 21 that document, am I correct? 22 A. That's correct. 23 Q. Have you had a chance to look at the unredacted version? 24 A. Yes. 25 Q. And what have you learned about the Social Security (212) 805-0300 SOUTHERN DISTRICT REPORTERS, P.C. --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 90 of 130 A-5775 C2GFDAU3 Brune - recross 318 1 thinking about, well, what will happen if nobody ever raises 2 it. But if nobody ever raised it, I don't think that I would 3 have even been acting ethically if I said on behalf of my 4 client, hey, here's an argument I don't even think is 5 meritorious but the government has omitted to raise it so I on 6 the defense side will raise it. 7 THE COURT: All right. Any further inquiries? 8 Ms. Davis or Mr. Schectman? 9 MS. DAVIS: Can I have one brief followup on that, 10 your Honor? 11 THE COURT: Yes. 12 MS. DAVIS: Can I just do it from right here? 13 THE COURT: Yes. 14 REDIRECT EXAMINATION 15 BY MS. DAVIS: 16 Q. Are you talking about facts or argument, Ms. Brune, when 17 you say you wouldn't have -- are you saying you would not have 18 disclosed the underlying facts or wouldn't have made the legal 19 argument? 20 A. If it was put in issue by the Court or by the government, I 21 would have done and in fact did do what I did. It's a little 22 tangled up. What I'm trying to say is, I would have laid it 23 out, which is what I did. 24 Q. The facts, though? 25 A. Well, I also try to lay out the applicable law. I'm not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009379 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 1616620 Filed 02/24/22 Page 94 of 130 A-5779 C2GFDAU3 Brune - redirect 322 1 Mr. Schectman? 2 MR. SCHECTMAN: No, your Honor. 3 THE COURT: All right, Ms. Brune, you are excused as a 4 witness. You may step down. 5 (Witness excused) 6 THE COURT: Would the government call its next 7 witness. 8 MR. OKULA: Yes, your Honor. United States calls 9 Laurie Edelstein. 10 LAURA EDELSTEIN, 11 called as a witness by the Government, 12 having been duly sworn, testified as follows: 13 THE COURT: Take a seat. State your full name, spell 14 your last name slowly for the court reporter. 15 THE WITNESS: Laura Joy Edelstein. 16 THE COURT: You may inquire, Mr. Okula. 17 MR. OKULA: Thank you, Judge Pauley. 18 DIRECT EXAMINATION 19 BY MR. OKULA: 20 Q. Good morning Ms. Edelstein. 21 A. Good morning. 22 Q. Would you agree with me that if a lawyer in the course of a 23 jury selection or during a trial forms a belief that a jury has 24 engaged in misconduct that that lawyer is under the obligation 25 to bring it to the attention of the Court? to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009383 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 98 of 130 A-5781 324 Edelstein C2GFDAU3 1 A. -- the plaza. Susan Brune, Theresa Trzaskoma and I were 2 walking across Centre Street and I recall that Theresa said she 3 just wanted to let us know that after receiving the note that 4 we had received from Juror No. 1, which raised certain legal 5 concepts, she had recalled that there was a suspended lawyer 6 with the same name. 7 Q. And had you previously been aware of the discovery by your 8 firm of the report relating to the suspended New York lawyer? 9 A. No. 10 Q. Did you ask Ms. Trzaskoma what she saw, what piece of paper 11 or what information she saw that led her to understand that 12 there was information relating to a suspended New York 13 attorney? 14 A. As far as I recall, she had just mentioned that during voir 15 dire she knew that there was a suspended lawyer with the same 16 name. I didn't realize that there was any piece of paper or 17 particular document at the time. 18 Q. But you just agreed that you were a person who asked for 19 the paper when an issue comes up, right? 20 A. Yes. 21 Q. Okay. 22 A. I didn't realize that there was a paper here that I should 23 be asking about. 24 Q. At what point did you ask Ms. Trzaskoma to show you the 25 paper concerning what formed her belief about the New York SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009385 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 98 of 130 A-5784 C2GFDAU3 Edelstein 327 1 Catherine Conrad, you have another Catherine Conrad. Can you 2 take some simple steps to try to investigate and look to see 3 whether they're the same people? Can you do that? 4 A. Yes. 5 Q. And how about this: Can you look to see if they have a 6 similar middle initial? Do you think that that increases the 7 likelihood that you're going to narrow the chances that it's 8 the same people? Would you agree with me that that's the case? 9 A. I mean, if you have the tools. I guess I'm not quite sure 10 what you're asking. If you're doing an investigation, yes, you 11 can look to see whether they have the same middle initial. 12 Q. Did you ask Theresa Trzaskoma what's the middle initial for 13 the suspended New York attorney? 14 A. No, I did not. 15 Q. Did you -- well, withdrawn. You were aware, were you not, 16 that your firm was in possession of the information showing 17 that Juror No. 1 was Catherine with middle initial M. Conrad, 18 correct? 19 A. No, I was not aware of that. 20 Q. So are you telling me that when Theresa Trzaskoma gives you 21 these two different names or two similar names, Catherine 22 Conrad and Catherine Conrad, you didn't suggest to her any 23 steps that she could take to try to determine whether it's the 24 same person? 25 A. No. We did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009388 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 113 of 117 A-5832 C2grdau4 Berke - cross 375 1 suspended attorney named Catherine Conrad, the same name as 2 Juror No. 1? 3 A. I was never in a position where I needed to or had to make 4 decisions about the investigation. I don't understand that I'm 5 here as an expert witness. I can tell you as a matter of fact 6 what I knew, what I was told, the conversations I had, but I 7 really can't go beyond that, Mr. Okula. 8 Q. You're not going to answer my question? You've hired 9 private investigators many times as a lawyer, right? 10 A. I have. 11 Q. Are you unwilling to answer the question that I just asked 12 about what steps you would take if you learned that Catherine 13 Conrad, a suspended attorney, was in existence and you knew you 14 had Catherine Conrad sitting in seat number 1? Are you not 15 going to answer that question? 16 A. What you are ignoring is it's such a far-fetched idea that 17 any citizen would come in here and lie to be a juror. I have 18 never experienced it as a practicing lawyer. It never occurred 19 to me it happened in this trial, and it's not something I have 20 ever thought about it. When I've used investigators it's 21 because I'm defending someone in a criminal case or civil case 22 and I want to look at facts. You're asking me to speculate and 23 give opinions about an experience I've never had. 24 MR. OKULA: Judge, I have no further questions for Mr. 25 Berke. BERKE, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009436 --- PAGE BREAK --- Case 1:20-cv-00330-PAE Document 1616620 Filed 02/24/22 Page 126 of 130 A-5696 UNITED STATES OF AMERICA, v PAUL M. DAUGERDAS, ET AL. February 15, 2012 ... (rest of the text from the image) --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 126 of 130 A-5699 C2GFDAU1 Hearing 242 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------x UNITED STATES OF AMERICA, v. PAUL M. DAUGERDAS, DONNA M. GUERIN, DENIS M. FIELD, DAVID K. PARSE, Defendants. -------------------------------x Before: HON. WILLIAM H. PAULEY III New York, N.Y. February 16, 2012 9:45 a.m. District Judge Appearances PREET BHARARA United States Attorney for the Southern District of New York BY: STANLEY J. OKULA, ESQ. NANETTE DAVIS, ESQ. JASON HERNANDEZ, ESQ. Assistant United States Attorneys JENNER & BLOCK LLP Attorneys for Defendant Daugerdas BY: CHRIS C. GAIR, ESQ. CHARLES B. SKLARSKY, ESQ. NICOLE ALLEN STETLER DUFFY & ROTERT, LTD. Attorneys for Defendant Guerin BY: MARK L. ROTERT, ESQ. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009303 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 1616620 Filed 02/24/22 Page 129 of 130 UNITED STATES OF AMERICA, v PAUL M. DAUGERDAS, ET AL., SOUTHERN DISTRICT REPORTERS February 15, 2012 ... (full text continues with the index entries) --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 1616620 Filed 02/24/22 Page 155 of 130 A-5700 CZGFDAU1 Hearing 243 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009304 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 673 of 117 A-5910 8 CAC3PARC 1 conversation -- 2 THE COURT: I'm really thinking about beyond the plaza 3 conversation, at the time a month and a half later when they 4 filed their motion, they failed to disclose to the Court what 5 they knew and when they knew it. And a series of proceedings 6 then occur, essentially initiated by both the Court and the 7 government to find out what they knew and when they knew it. 8 And their statements in their memorandum to the Court on their 9 motion that they knew were wrong or misleading at the time that 10 they made them to me. 11 MR. SHECHTMAN: You're not going to get much argument 12 from me on the point. The Court has a sort of lovely phrase in 13 the opinion about disclosure by iteration or something like 14 that. There is no doubt when you go from the telephone 15 conversation to the document itself, and then to and not 16 wanting further discovery, wanting your Honor to somehow 17 address a preliminary issue and issues of privilege. Your 18 Honor knows I got in this case late and the first thing I did 19 was to say, what are we kidding ourself? We are going to turn 20 over those documents to the Court because worse comes to worst, 21 the Court is going to look at them in camera. And if it is 22 going to look at them in camera, it is going to look at them, I 23 don't know you can say out of camera, but it's going to look at 24 them. This is not a game. 25 I think what happened, though, is lawyers said to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 1616620 Filed 02/24/22 Page 873 of 130 A-5772 C2grdau2 Brune - redirect 315 1 immigration judge, her father, correct? 2 A. I certainly read that in the email that we produced. 3 Q. That's what the email says, correct? 4 A. That's what the email says. 5 Q. Going to page 11, it has information from the New York 6 State Office of Court Administration, correct? 7 A. It does. 8 Q. It references license status as a suspended attorney, 9 correct? 10 A. Yes, it does. 11 Q. You have just testified on cross-examination that you 12 didn't think you had anything to investigate about her, 13 correct? 14 A. That's right. 15 Q. If you had seen this Westlaw report on May 12th, you would 16 have thought you had something to investigate, correct? 17 A. I didn't, but I have to say that I don't believe it would 18 have changed what happened here. By that I mean that this 19 thing to me, without having any particular expertise in these 20 things, looks like it mushed two people with the same name 21 together. I was convinced that she was the Bronxville 22 stay-at-home wife and not the suspended lawyer. 23 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009376