Document 16166201

Case 1:20-cr-00338-PAE Document 16166201 Filed 02/24/22 Page 13 of 117 A-5828 C2rdau4 Berke - cross 371 1 other obligations. I never will act on a piece of information 2 that I think invokes my duties as an advocate for my client as 3 well as an officer of the court without first looking at the 4 rules. I will read the rules. 5 As we all know, at times you will read the rules, they 6 will be absolutely clear what my obligations are. Sometimes 7 they will be less clear and we will research it. That's what I 8 do. I never act on information until I do that, and I've never 9 done that on that issue. That's what I can tell you. 10 Q. I don't think you answered my question, though. Can you 11 answer the question that I asked? If you form a belief as an 12 attorney in a courtroom that a juror has engaged in misconduct, 13 do you have to bring that to the attention of the court? 14 A. What I can tell you is if I had confronted that issue -- 15 Q. Is this another one that you can't answer yes or no? 16 A. I'm going to answer your question. 17 Q. Would you do that. 18 A. I will. What I will tell you is my reaction to that 19 information if I confronted it would be that I believe I have 20 an obligation to tell the court. Before I did anything, 21 though, I would do exactly what I said. I would look at the 22 rule, look at the law, and make sure I was complying with all 23 my obligations. 24 Q. Did Susan Brune explain to you why she felt it important to 25 bring the information to your attention that her firm had SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009432 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 16166201 Filed 02/24/22 Page 18 of 117 A-5833 C2grdau4 376 Berke - redirect 1 MR. SHECHTMAN: I do. 2 THE COURT: Mr. Shechtman. 3 REDIRECT EXAMINATION 4 BY MR. SHECHTMAN: 5 Q. You were told by Ms. Brune that there was a suspended 6 lawyer with the name Catherine Conrad which was the same as 7 Juror No. 1? 8 A. That is correct. 9 Q. And you didn't do any further investigation? 10 A. I did not. 11 Q. That's because you agreed with her that based on the voir 12 dire, this couldn't be the same person? 13 A. Exactly. 14 MR. SHECHTMAN: No further questions. 15 THE COURT: Anything further? 16 MR. OKULA: No, your Honor. Thank you. 17 THE COURT: Mr. Berke, you're excused. You may step 18 down. 19 THE WITNESS: Thank you, Judge. 20 (Witness excused) 21 THE COURT: You're still talking as fast as ever. 22 THE WITNESS: I made a promise I wanted to keep. 23 THE COURT: Mr. Shechtman, does the defendant Parse 24 have any additional witnesses to call? 25 MR. SHECHTMAN: No, your Honor. MR. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009437 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 16166201 Filed 02/24/22 Page 21 of 117 A-5836 379 C2grdau4 1 THE COURT: Right. In the end, whatever happens with 2 respect to these matters before the Court, I think that it is 3 in everyone's interest that they travel together wherever 4 they're going. 5 Are there any other matters that counsel want to raise 6 at this time before we fix a schedule for the submission of 7 these briefs? 8 MR. OKULA: No, your Honor. I was just going to 9 suggest most respectfully that perhaps if counsel for the 10 government and defendants could confer momentarily about a 11 proposed schedule, then we could propose one to the Court. 12 THE COURT: That's fine with me. 13 MR. GAIR: Judge, Mr. Okula is on vacation next week, 14 so I'd like to suggest one week. 15 MR. SHECHTMAN: Judge, if we might be heard? 16 THE COURT: Go ahead. 17 MR. SHECHTMAN: We want very much to accommodate Mr. 18 Okula's vacation, seriously. He has suggested three weeks. I 19 start a trial on Tuesday, a month-long trial. I fully 20 appreciate that I have to write this brief on weekends, and I 21 will, but an extra week would be very helpful. If we could get 22 a month, that would be grand. 23 THE COURT: Fine. You've got it. Do you want to file 24 your briefs on March 16, your initial briefs, or do you want 25 March 23? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009440 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 16166201 Filed 02/24/22 Page 23 of 117 A-5837 C2grdau4 380 1 MR. SHECHTMAN: I'd be happy if we could have March 2 19th so we can't get that extra weekend. 3 THE COURT: I'll give you until the 23rd if you want. 4 MR. OKULA: That's fine. It separates it from St. 5 Patrick's Day more, Judge. 6 THE COURT: All right. March 23 for the initial 7 briefs. Why don't you provide your responses by April 5th. 8 MR. OKULA: That's fine, Judge. 9 THE COURT: Will that work? 10 MR. SHECHTMAN: Yes. 11 THE COURT: I'll take the matter then on submission. 12 Is there anything else that counsel want to raise? 13 MR. OKULA: Not other than our thanks, Judge. 14 THE COURT: My thanks to all of you for conducting the 15 hearing in the customary professional and efficient manner. 16 Certainly there are some aspects of it that have been 17 memorable, and that's an understatement. Have a good 18 afternoon. 19 (Adjourned) 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009441 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 16166201 Filed 02/24/22 Page 25 of 130 A-5710 C2GFDAU1 Brune - direct 253 1 A. That's right. 2 Q. And everyone at your firm knew and understood that, 3 correct? 4 A. Sure. 5 Q. Now, Ms. Trzaskoma is a partner at your firm, correct? 6 A. Yes, she is. 7 Q. And one of her responsibilities with regard to this 8 particular case was jury selection details, correct? 9 A. That's right. 10 Q. And you entrusted her with that task, correct? 11 A. Well, yes and no. I'm ultimately responsible and I was 12 responsible at trial for jury selection, but you're correct 13 that she was much more immersed in the details and in the 14 effort. 15 Q. One of the things that your team did was to gather 16 information about potential jurors? 17 A. Yes. 18 Q. And Ms. Trzaskoma was supervising other people within the 19 firm about gathering information? 20 A. Well, it was a combination. There were two lawyers from 21 San Francisco who were doing a lot of the work, but then 22 ultimately it was Theresa who was going to be responsible for 23 the courtroom work. 24 Q. And you were supervising her in that regard, correct? 25 A. That's right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009314 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 16166201 Filed 02/24/22 Page 48 of 130 A-5733 276 C2GFDAU1 Brune - direct 1 trial? 2 A. Yes. 3 Q. You would agree it was an appropriate area for the Court to 4 inquire? 5 A. Yes. 6 Q. Indeed a necessary area? 7 A. Yes. 8 Q. And it was appropriate for the jurors to tell the Court 9 whether or not they would be available, correct? 10 A. Not only was it appropriate, I think that the Court's 11 instructions to them were that they had to. 12 Q. Now, you were present for every day of the trial, correct? 13 A. Yes. 14 Q. And because of the way the tables were set up, you indeed 15 had a direct view of the jury box, correct? 16 A. That's right. 17 Q. Unlike virtually anyone else in the courtroom, you were 18 squarely facing them, correct? 19 A. Yes. I couldn't see the witness stand at all, but I could 20 see the jury very well. 21 Q. And that included Ms. Conrad, correct? 22 A. Yes. 23 Q. You saw that during the trial she was an attentive juror? 24 A. Yes. 25 Q. She took a lot of notes? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009337 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 16166201 Filed 02/24/22 Page 68 of 117 A-5912 10 CAC3PARC 1 going to win. We're going to have a sentencing in January and 2 not a trial in the spring. But I don't think you can read that 3 much into it, and I don't think that in fairness to Mr. Parse 4 the record supports that. But I understand your Honor's views 5 of the matter. I can't say more. 6 THE COURT: Other than the alleged deficiencies by the 7 Brune firm regarding Juror No. 1, was Parse's counsel otherwise 8 constitutionally effective? 9 MR. SHECHTMAN: Look, I've never read a trial record 10 where I didn't wish I wish they would have preserved that issue, 11 I wish they would have made that argument, I think that 12 cross-examination could have been stronger. I came away from 13 that trial thinking, boy, that Barry Berke is a great 14 cross-examiner. 15 If you asked me was it constitutionally adequate, you 16 bet. It was very solid defense by a group of very good 17 lawyers. So, that's one easy for me. 18 THE COURT: Can you think of any circumstance where a 19 Court could find both a waiver to an impartial jury and 20 effective assistance of counsel? 21 MR. SHECHTMAN: Yes. I think. The simplest one is if 22 it really was a strategic decision, take the most blatant case, 23 the lawyer said to themselves free bite at the apple, don't 24 tell the judge. If we get an acquittal the great thing about 25 the double jeopardy clause is it's over. That is a waiver SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009488 --- PAGE BREAK --- Case 1:20-cv-00330-PAE Document 16166201 Filed 02/24/22 Page 86 of 117 A-5929 CAC3PARC 27 1 rely on what Catherine Conrad said. 2 THE COURT: All right. Counsel, thank you for your 3 arguments on the motion. Decision reserved. Have a good 4 afternoon. 5 MS. DAVIS: Thank you. 6 oOo 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-00009505 --- PAGE BREAK --- Case 1:20-cv-00330-PAE Document 1616620 Filed 02/24/22 Page 113 of 117 A-5826 369 C2rda4u Berke - direct 1 copy machines and other things and often spent time back there, 2 I remember talking to Ms. Brune about the note. 3 I recall her saying that they had identified a person 4 with the same name who had been a disbarred lawyer. I recall 5 saying to her, well, that can't be, because she certainly isn't 6 a lawyer. I said, I assume she was asked what her educational 7 background was. I remember Ms. Brune said she did, she was 8 asked, she said that she had a BA degree. Ms. Brune told me 9 what it was in. I don't recall as I sit here. But it was some 10 humanities. I recall saying, well, definitely it can't be the 11 same person. She said, that's what I think as well. 12 That was really the end of it. I would say the 13 conversation probably did not last more than two, three minutes 14 at most. Then I recall we left the room and that was it. 15 Q. She said, that's what I think as well? 16 A. That's what I recall. 17 MR. SHECHTMAN: No further questions. 18 THE COURT: Cross-examination. 19 CROSS-EXAMINATION 20 BY MR. OKULA: 21 Q. Good afternoon, Mr. Berke. 22 A. Good afternoon, Mr. Okula. 23 Q. I get to check one of the things off my bucket list. 24 A. I just hope you didn't prepare too much for it. 25 Q. Would you agree with me, Mr. Berke, that if an attorney SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009430 --- PAGE BREAK --- Case 1:20-cr-00338-PAE Document 16166201 Filed 02/24/22 Page 143 of 117 A-5829 C2grdau4 Berke - cross 372 1 learned about the juror or believed or the connection between 2 the juror? 3 A. No. I think I have told you the substance of what I recall 4 of that conversation. 5 Q. She didn't explain in any fashion why she thought it was 6 important to tell you at that period of time? 7 A. No. 8 Q. Did she tell you anything else that her firm had learned 9 that gave rise to the belief by one of their attorneys that 10 there was a connection between Juror No. 1 and the suspended 11 New York attorney? 12 A. No. 13 Q. Did she tell you any of the underlying facts? 14 A. No. The only other thing that I recall is that when 15 talking about the note, we both noted that we believed that 16 Juror 1 had said she had been a plaintiff in a personal injury 17 case, which might explain the respondeat superior. I can't say 18 for certain it was in that identical conversation, I believe it 19 was probably was, but I do remember talking about that as well. 20 Q. Let me ask you this. If you had learned from somebody at 21 the Brune firm that they had a written report showing somebody 22 named Catherine Conrad had a personal injury or had a private 23 lawsuit, would that be a piece of information that you would 24 want to have had at the time in order to do your own analysis? 25 A. Just to be clear, what I'm referring to, I believe the (212) 805-0300 DOJ-OGR-00009433