Totally Lost…

I’m trying to understand the latest Motion and Response that occurred in the Criminal Case.  First and foremost, Neil C. Evan’s filed Opposition to Motion to Admit Business Records (“Opposition Motion”) and he put the hearing date as “6/6/2010”, but I believe he means 12/6/2010 (Case 2:10-cr-00346-SJO; Page ID 547).

Apparently David Feuerborn opposes the U.S. Government’s Motion to Admit Business Records which was discussed previously on my “Payday” entry.  According to Neil’s Opposition Motion, David desires to “cross-examine each of the proposed Declarants to address issues of authentication of records in each and every respect, and as to any other issue raised by these proposed Declarations” (Case 2:10-cr-00346-SJO; Page ID 548).  According to the Opposition Motion David believes he has the right to confront or cross-examine witnesses under the Confrontation Clause.  That said, it states that David doesn’t mind streamlining the process by taking depositions “at the expense of the [U.S. Government]” (Case 2:10-cr-00346-SJO; Page ID 548).  (Yeah, I’m sure he wouldn’t mind putting it on Uncle Sam’s tab!)  Further, David proposes taking the depositions via telephone and/or SKYPE to expedite the process. 

Hmmm.  This seemed a bit odd to me, and apparently the Assistant U.S. Attorney felt the same way.    So what did the Assistant U.S. Attorney reply with?  Well let’s take a look.  On December 1, 2010 the U.S. Government filed the Government’s Reply in Support of Motion to Admit Business Records under Declarations of Custodian of Record Pursuant to 902(11) and 803 (6) (“Government’s Reply”).  In summary, the Government’s Reply indicates that they want to take testimony, that won’t be entered into the trial as evidence, in order to authenticate bank documents, etc.  Why would anyone need to cross-examine a banker that authenticates a bank document?  Any opposition to this request seems like a stall tactic to me, and apparently there are specific laws to ensure that this attempted delay tactic does not occur.  Also, it should be noted that Thomas Jennings does not oppose the Government’s Motion to Admit Business Records.  Thus, the Government stated the following in its response:

“Defendant Feuerborn fundamentally misunderstands the scope of the Confrontation Clause, specifically, the difference between ‘testimonial’ and ‘non-testimonial’ evidence as well as its applicability to pretrial Rule 104 hearings on the admissibility of proffered evidence” (Case 2:10-cr-00346-SJO; Page ID 554).  Further the Government’s Reply states, “Defendant Feuerborn’s proposal should be rejected.  Except for those permitted by rule 15, there are no depositions in criminal cases” (Case 2:10-cr-00346-SJO; Page ID 559).

You’re telling me that a seasoned criminal attorney doesn’t know that there are no depositions in criminal cases…

The Government’s Reply notes that the only testimony that could even be regarded as “testimonial” (which would allow the Defendants the right to cross-examine the witness) is testimony taken from a woman that performed the interior decorating on Mr. Jennings’ residence.  So that begs the question – what does David Feuerborn have against this woman’s testimony.  If anyone objects to it shouldn’t it be Jennings?

I think the court will see this for what it is – another stall tactic.  This seems to be their modus operandi in both the Criminal Case and Civil Case. 

Judge Otero will rule on this motion on December 6, 2010.  I will post his ruling when it comes across the wire.

-          ESS Investor