Free Pretrial Conference - District Court of Colorado - Colorado

Case 1:04-cr-00403-LTB

Document 749

Filed 05/12/2006

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CHIEF JUDGE LEWIS T. BABCOCK _____________________________________________________________________ Courtroom Deputy: Deborah Hansen Court Reporter: Gwen Daniel Date: May 12, 2006 Interpreter: Julia Davis and Adrianna Weisz

_____________________________________________________________________ Criminal Action No. 04-cr-00403-LTB
UNITED STATES OF AMERICA,

Counsel:
Stephanie Podolak Guy Till

Plaintiff, v.
1. 2. 4. 5. 6. 7. 8. 10. 11. 12. 13. 15. CARLOS ZAPATA-HERNANDEZ SERGIO ZAPATA-HERNANDEZ, ARNOLDO ZAPATA, JOSE ALFREDO ZAPATA, JAIME ARMENDARIZ RAMON ZAPATA JAIME ZAPATA, ALBERTO CABRAL, ARTEMISA ZAPATA-MONTOYA, HUMERTO GALVAN, LILIAN GALVAN, OSCAR ZAPATA, Defendants. 1)Richard Bednarski (2)Jeffrey Pagliuca (4)Rick Toray (5)Richard Banta (6)Lisabeth Castle (7)Ronald Gainor (8)Jennifer Geddes (10)Martha Eskesen (11)Scott Poland (12)Donald Lozow (13)Scott Poland for Michael Root (15)Charles Elliott

_____________________________________________________________________ COURTROOM MINUTES _____________________________________________________________________ HEARING - TRIAL PREPARATION CONFERENCE 03:05 p.m. Court in Session

Interpreters sworn

1

Case 1:04-cr-00403-LTB

Document 749

Filed 05/12/2006

Page 2 of 5

Appearances The Court tells counsel that from this point forward at the trial preparation hearings lead counsel, that is the Number One Chair, will be present. That goes for the Government and the defense. All defendants' presence were waived for this hearing. Present are: Defendants Efrain Venzor, Oscar Zapata, Jaime Zapata (all on bond). Mr. Poland states that his client will be arriving later. The Court addresses the materials submitted for this hearing. The transcriptions have been disclosed and provided, they are in notebooks and identified in the Government' Exhibit List. s Ms. Podolak' comments s Ms. Podolak clarifies for the Court and for defense counsel, as to the transcripts, they went through and culled out the ones that they wanted to use from the James proffer. They bate-stamped those numbers with a "T." Court' comments s Ms. Podolak' further comments - her thought was to give these to the jury with each s transcript separated out -- obviously with an exhibit number -- and then for the Court to give a limiting Instruction that they should not go forward in the books. It has been her experience with Spanish language transcriptions and translations that jurors prefer to have them in front of them rather than try to follow them on a computer screen as it's going, because people read at different paces. That's what they have done in prior trials. That's what they intended to do here. Ms. Podolak' further comments - her understanding of the law as it comes to s transcriptions and translations is that they provide the side by side, and it is actually those translations and transcriptions that become the evidence, since the tape itself is no use to the jury, since they don't speak Spanish. Discussion re Government' disclosure of 404(b), 609 and 807 evidence s Ms. Podolak' further comments - what the Government did in this case to make it s streamlined was have one of the contract linguists from DEA listen to each and every one of these transcripts -- conversations, review the work product of the other contract 2

Case 1:04-cr-00403-LTB

Document 749

Filed 05/12/2006

Page 3 of 5

linguists who did these, and sign off -- make changes on some of them, and sign off that in her expertise these were now final, complete, accurate transcriptions and translations. The Court' further comments re exhibit conference s Mr. Pagliuca' comments - it might be a little premature given that they have just seen s these documents Mr. Pagliuca' further comments - there may be certain things that they could agree to, s but his experience is that with this many defendants it's unlikely they are going to get stipulations from everybody. Mr. Steinberg' comments re: Government' proposed Instructions s s ORDERED: A further trial preparation conference is set Friday, June 30, 2006 at 7:30 a.m. Defendants'presence is waived. Discussion re: Daubert motions ORDERED: Any Daubert motions shall be filed by Friday, June 2, 2006; Government' responses are due by Friday, June 16, 2006. s Mr. Pagliuca' comments re: Government' translations s s Mr. Pagliuca' further comments - when the issue of these various phones calls came s up, his recollection of his understanding at the time was anyone who wanted to have their own translation of that material needed to designate it and then the Court divvied up the cost of that translation. He may have specific objections to what the Government is claiming their translation is. Court' further comments - the intent of the Court was to avoid any last-minute disputes s about the accuracy of the translations; and the way in which that was to be avoided was to give each defendant an opportunity, as to any translation, to lay to rest any such dispute by having a court-certified translation and transcription of that conversation. Further discussion concerning the translations Mr. Pagliuca' further comments - he understands what the Court is saying today. s It wasn't clear to him when this issue was discussed previously. He took it as more of an economic issue and concern. Court' further comments s 3

Case 1:04-cr-00403-LTB

Document 749

Filed 05/12/2006

Page 4 of 5

Mr. Pagliuca' further comments - in advance of trial, now that he has, designated as s exhibits, those specific conversations that the Government is intending to introduce at trial, he would like to go through those, and if he has a disagreement in advance of trial, raise that issue with the Court. The Court responds that he thinks Mr. Pagliuca is late. Mr. Pagliuca' further comments - he respectfully disagrees with the Court's s assessment of the status of the record at this point with regard to that issue. Court' further comments - the record will be checked. s Mr. Tory asks, is the Court' order then that if to the extent these are certified s transcripts, the Court is going to automatically substitute those for the other ones, for any transcripts that the Government -Court' further comments s The Court would substitute any court-certified transcript of the same conversation for that proffered by the Government. The defense is going to have to scrub these transcripts and find out what transcripts there may be that they have a court-certified interpretation and transcription of for substitution. And be able to address that at the next trial preparation hearing. Further discussion Mr. Toray asks if the Court has issued a deadline for the defense to disclose witnesses and exhibits. Court' comments s ORDERED: Defense counsel, by June 22, 2006, may file, if any, exhibit and witness lists and any special Jury Instructions. ORDERED: The parties shall, by June 22, 2006, file any trial briefs concerning evidentiary issues and stipulations concerning exhibits. Ms. Eskesen' comments - back to the transcripts, it's her understanding that the actual s retranslations and retranscriptions that were done upon request by various defense counsel were provided to them, but not the Government. So they have those. Court' further comments s

4

Case 1:04-cr-00403-LTB

Document 749

Filed 05/12/2006

Page 5 of 5

The Court tells Ms. Eskesen to bring them to the next trial preparation hearing -identifying the court-certified version of it so that that can be substituted for that translation transcription provided by the Government. Ms. Podolak' further comments - it would be helpful if the defense could mark those by s what the " number is. T" Court' further comments - cross-referenced so that they can be read according to the s " numbers. T" ORDERED: The Government has until Tuesday, May 16th to produce expert reports. Ms. Podolak requests an additional 24 hours, to midnight on Wednesday, to submit the expert summaries. There are no objections from any defense counsel. ORDERED: The Government' request is GRANTED. The Government has until s May 17, 2006 to produce any expert reports. 03:57 p.m. Court in Recess Hearing concluded Time: 52 minutes

5