6.Rule 29, Jurisdictional Proof, and Foreign-National Victim Stipulation
88 lines(SIDEBAR CONFERENCE AS FOLLOWS:
MR. WEINREB: I just wanted to put something on the record. I'm sorry. I thought I had requested --
THE COURT: I wanted the answer.
MS. CLARKE: And the answer is we're not going to delay the proceedings further to call a witness.
THE COURT: That's it?
MS. CLARKE: That's it.
THE COURT: The motion for reconsideration of the distance ruling is denied as well.
MR. WEINREB: So --
THE COURT: So I think that's it. And your rebuttal?
MR. WEINREB: Well, that depends on what I'm about to say. So the defense filed a Rule 29 motion. One of the arguments that they make is that -- just by way of preface, there are two counts predicated on 18 U.S.C. 2332(f), one relating to the bomb that exploded at Scene A and one relating to the bomb that exploded at Scene B. That statute is known as bombing a place of public use. The statute has certain elements. It has a jurisdictional requirement, and then it also has exemptions from jurisdiction. The defense --
THE COURT: Let me just read it for a second.
Okay.
MR. WEINREB: So the defense has argued in their papers, in effect, that one of the exemptions applies and that the government has not essentially disproved that it applies. The government's position is that exemptions to jurisdiction are an affirmative defense that the defense has to raise in a timely fashion and that they waived it.
Secondly, that even if it were deemed to have been raised in a timely fashion that the defense bears the burden of proof just like it does with all affirmative defenses. And we have just offered the defense an opportunity, if they wish, to take some time to try and prove that there were no foreign nationals at Scene A. But I can proffer that there were several foreign nationals at Scene A, and I don't believe the defense could ever prove there weren't, and I don't believe they're going to try.
In the event the Court were to rule that it is either not an affirmative defense and needed to be raised in a timely fashion or that it is an affirmative defense, yet it's still somehow the government's burden to disprove it, then we would seek to disprove it in our rebuttal case by putting on evidence that an individual at Scene A who was injured was, in fact, a foreign national. That's where the rebuttal case is implicated.
MS. CLARKE: Well, we'll rest on our legal arguments, your Honor, and I don't think the --
THE COURT: Do you disagree with the proposition that it's an affirmative defense as to which the defense bears the burden?
MS. CLARKE: We disagree with the government's positions, both of them.
THE COURT: I don't know the answer.
MR. WEINREB: Right. And I don't think that an answer needs to be made now. The only issue is I think that if there's -- if the Court is not going to rule out the possibility that it is an affirmative defense, yet one on which we bear the burden of proof, then we would like the opportunity to put on a witness. It would probably be a five-minute witness on Monday morning before we close. That would simply establish that there was a foreign national injured at Scene A.
MS. CONRAD: It's not --
MR. WEINREB: That way the record will have the information in it. If it turns out that, as a legal matter, it was unnecessary, it's hardly --
THE COURT: Could you do that this afternoon or tomorrow morning?
MR. WEINREB: Tomorrow morning? We could probably do it by tomorrow morning. I didn't think you were going to bring the jury in tomorrow.
THE COURT: Well --
MR. WEINREB: Just for five minutes?
THE COURT: You couldn't do it this afternoon?
MR. WEINREB: We could try. They're --
THE COURT: They're going to get lunch anyway, so --
MR. WEINREB: We could try. I'm not sure we could succeed, but we'll do our best.
THE COURT: I guess, not knowing the answer to the questions, my reaction is that it may be the most prudent thing to do to cover the bases, that's all. And if it's not hard to do, then I guess that makes a prudential argument stronger.
MS. CLARKE: It's certainly not a rebuttal case, and we made the Rule 29 at the close of our case.
MR. WEINREB: I believe that if it is an affirmative defense and it wasn't raised until after the government's case closed, then it is a rebuttal matter.
THE COURT: Yeah, it probably is under those circumstances. Well, I don't know. I'm not sure it is. I'm not sure of any of this. But even if it's not strictly rebuttal, I could grant leave to do it for the argument raised in the papers and the timing.
MS. CLARKE: We would -- just for the record, we would object.
THE COURT: So I think we will adjourn, and we'll reconvene at 2:00 after the jurors have had lunch, and we'll figure out what we're going to do. Meanwhile, you can find out what your logistical issue might be.
MS. CLARKE: Then we'll rest, renew the 29, and talk some --
THE COURT: And then talk some logistics probably. We'll take the noon recess -- lunch recess.
. . . END OF SIDEBAR CONFERENCE.)
COURT CLERK: Court will take the lunch recess.
(Luncheon recess taken at 12:56 p.m.)
(After the recess:)
COURT CLERK: All rise for the Court.
(The Court enters the courtroom at 2:12 p.m.)
THE COURT: I'll see counsel at the side.
(Discussion at sidebar and out of the hearing of the public:)
THE COURT: Somebody wanted this.
MS. CLARKE: Yes, I did.
Judge, I understand that they are not calling a police officer but intend to call an actual victim. We think that's incredibly prejudicial.
First of all, the indictment alleges that -- they allege the jurisdictional component, that a victim of the offense was a national of another state. They did not prove it. They knew they had to prove jurisdiction but did not establish it, and they waited until after our case and after our Rule 29 was raised to ask to reopen the case and put on an actual victim of the offense, which we think is incredibly prejudicial if they're allowed to reopen.
MR. MELLIN: Your Honor, in response, this is a rebuttal witness in response to the argument that we have failed on this front, on the exemption front. In fact, in the indictment that is surplusage, because the first section covers the issue. It was committed in an attempt to compel the United States to do and abstain from doing an act. So that would be the jurisdictional --
THE COURT: Well, these are alternatives, right?
MR. MELLIN: Correct. No, it's not --
THE COURT: The first jurisdictional provision.
MR. MELLIN: Yes, there are four or five alternatives --
THE COURT: The exemption then excludes the second alternative unless there's a substantial effect on interstate commerce.
MR. MELLIN: Correct. Correct.
So we would first say that we have already shown that there is an effect on interstate commerce based on the testimony in this case. But to the extent that the defense is claiming that we have an obligation to prove this point -- and we do think it is their obligation to prove this affirmative defense. But if they're claiming that we have not, we are putting on this witness in rebuttal to show that, in fact, there are foreign nationals who were affected, non-U.S. citizens.
THE COURT: Well, I think we should do this: Reserving the argument, we'll hear from the witness, but the argument is not waived and it may still be defective, that they failed in their case-in-chief.
MS. CLARKE: In light of that preservation, your Honor, we would want to preserve the issue, but we just cannot bear the prejudice of the government coming back with a victim of the offense when we put on nothing in our case. It's not a rebuttal case. And it allows them to end on a note of a victim, and that's not fair.
MR. MELLIN: Your Honor, it would be one thing if this victim was somebody who suffered an amputation or something like that. That is not the case. This is someone who is from Holland, who is here now, a green card holder who suffered hearing loss from this. He was very close to Scene A at the time the bomb went off, he is still suffering from partial deafness in his left ear. It's not someone who's going to come in here like Jess Kensky or some other witness who is going to come in here with a prosthetic device.
THE COURT: And it will be brief?
MR. MELLIN: It will be incredibly brief.
THE COURT: I understand, but I'll take it -- the legal argument is preserved.
MS. CLARKE: Well, Judge, if the legal argument is preserved, we really just can't have them end on a victim, and we would offer a stipulation to the extent they want to do that, to that --
THE COURT: All right. Stipulate to the fact.
MS. CLARKE: Without waiving the argument -- the arguments that we made.
THE COURT: And we'll resolve --
MR. WEINREB: Just so we're clear, so the stipulation is that one of the victims of the offense was a foreign national.
THE COURT: Since that's a new idea, why don't we just take a -- let everybody think about this carefully. So let's take another recess and think that through. I think we should be careful we do it the right way to preserve both interests here, which includes the defense argument that having failed to do it before the government rested, they cannot repair it.
MS. CLARKE: Right.
THE COURT: That should be preserved as well. Okay? So figure out how to do that.
MS. CLARKE: Thank you.
(In open court:)
THE COURT: All right. We'll take another short recess.
COURT CLERK: All rise for the Court. The Court will take another brief recess.
(The Court exits the courtroom and there is a recess in the proceedings at 2:17 p.m.)
COURT CLERK: All rise for the Court.
(The Court enters the courtroom at 2:40 p.m.)
THE COURT: All right. I'll see counsel.
(Discussion at sidebar and out of the hearing of the public:)
THE COURT: This is fine. I think it could be read to the jury on the understanding that all legal arguments about these issues, both as to the sufficiency of the proof of the count in the first place and the applicability of the exemption, all arguments on both sides are preserved so you can think this through.
MS. CLARKE: And the right of the United States to rebut. We're objecting to them putting on a rebuttal case.
THE COURT: Correct. All of those issues. So if they failed in their original case, whether it should be rebuttal or whether it should be reopening or whether it should happen at all, we'll just take our time to figure that out. So you can read the stipulation. But the consequence would be, if the defense arguments were to prevail, that the jurors would be instructed to forget this. But I think it's small enough.
MR. WEINREB: So our request would be that the defense rest and then the Court read the stipulation to the jury.
THE COURT: Fine.
MS. CLARKE: We'll rest, renew our Rule 29, and then I guess the Court reads the stipulation at the request of the government?
MR. WEINREB: Yes.
THE COURT: That concludes the evidence.
MS. CLARKE: And then we will -- we'll renew our Rule 29 then.
THE COURT: All right. So we'll send the jury home with instructions to return on Monday, okay?
MR. WEINREB: Okay. Are you going to see us afterwards?
THE COURT: Yeah. I think you'd better.
MR. WEINREB: We'll stick around.