U N R E D A C T E D 1804 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ------------------------------------------------------- ANA PATRICIA CHAVEZ, CECILIA ) SANTOS, JOSE FRANCISCO ) CALDERON, ERLINDA FRANCO, AND ) DANIEL ALVARADO ) ) Plaintiffs, ) ) VS. ) NO. 03-2932-Ml/P ) ) ) NICOLAS CARRANZA, ) ) Defendant. ) ------------------------------------------------------- TRIAL PROCEEDINGS BEFORE THE HONORABLE JON PHIPPS MCCALLA, JUDGE NOVEMBER 15 & 16, 2005 VOLUME XI BRENDA PARKER OFFICIAL REPORTER SUITE 942 FEDERAL BUILDING 167 NORTH MAIN STREET MEMPHIS, TENNESSEE 38103 1805 A P P E A R A N C E S Appearing on behalf of the Plaintiffs: BASS BERRY & SIMS PLC 315 DEADERICK STREET, SUITE 2700 NASHVILLE, TENNESSEE 37238-3001 By: DAVID R. ESQUIVEL, ESQ. CAROLYN PATTY BLUM, ESQ. CENTER FOR JUSTICE & ACCOUNTABILITY 291 WEST 12TH STREET NEW YORK, NEW YORK 10014 MATTHEW J. EISENBRANDT, ESQ. CENTER FOR JUSTICE & ACCOUNTABILITY 870 MARKET STREET, SUITE 684 SAN FRANCISCO, CALIFORNIA 94102 Appearing on behalf of the Defendant: FARGARSON & BROOKE 65 UNION AVENUE 9TH FLOOR MEMPHIS, TENNESSEE 38103 By: ROBERT M. FARGARSON, ESQ. BRUCE BROOKE, ESQ. 1806 1 TUESDAY MORNING AND AFTERNOON 2 NOVEMBER 15, 2005 3 The jury trial in this case resumed on this 4 date, Wednesday, November 15, 2005, at 8:32 o'clock a.m., 5 when and where the jury deliberated all day. 6 7 WEDNESDAY MORNING AND AFTERNOON 8 NOVEMBER 16, 2005 9 The trial of in this case resumed on this date, 10 Wednesday, November 16, 2005, at 8:30 o'clock a.m., when 11 and where proceedings were had as follows: 12 13 ____________ 14 15 16 THE COURT: We obviously have a note from the 17 jury, and they sent us several things. They had asked for 18 extra copies of the instructions. Of course, we gave it 19 to them, that's just a ministerial matter, so we made some 20 more copies for them. They asked for an easel, and we 21 gave them an easel. The next thing they said was for 22 punitive damages, the jurors need to know if we need a 23 unanimous vote, and the answer is obviously yes. And I 24 haven't told them that yet because we had a fourth 25 question or fourth observation yesterday evening. We need 1807 1 clarification on four elements that are necessary for 2 awarding -- I think it is punitive damages from me, and 3 then, of course, they went home about that time. And I 4 tried to -- I think that what they're saying -- and this 5 is always a problem, we can ask for clarification if you 6 would like to. I think they're referring to the 7 unfortunate use of the word elements where we should have 8 used components probably in the compensatory damage 9 section at the very last paragraph, because, of course, it 10 is just components, they're not -- each and every one -- 11 they don't have to be shown separately, and then my 12 conclusion is that -- and we used factors later on where 13 it was appropriate, but it must be that they think -- it 14 may be that the jury has construed that the conduct was 15 intentional, malicious, wanton or reckless as conjunctive 16 as opposed to disjunctive. Well, grammatically, that 17 would be hard to get to. It certainly happens, and so I 18 think we just have to tell the jury that they need find 19 only one of those, but it has to be a unanimous 20 determination as to that particular factor. You may in 21 your discretion award punitive damages only if you find 22 that the conduct was either intentional or malicious or 23 wanton or reckless, that is as it is defined in the 24 instructions. If they cannot all agree on one of those, 25 then, of course, they cannot return a verdict on punitive 1808 1 damages as to the defendant -- as to the plaintiff that 2 they're considering, as to that plaintiff's claims against 3 the defendant. So that's the -- that's probably the 4 answer. Now, the -- that leaves us with a discussion 5 point, which is one, what do you think and what do you 6 want to do. I will start with plaintiffs. 7 MS. BLUM: Your Honor, there are a couple of 8 points I want to raise, which is to the extent that people 9 are confused about whether they all have to think the same 10 way about using those four things -- 11 THE COURT: Well, they do have to agree on the 12 same component, that's a fundamental -- in other words, if 13 some of them think it is wanton and some of them think it 14 is reckless and some of them think it is intentional, some 15 of them think it is malicious, but not all nine of them 16 agree that it is either -- it is one of those, then they 17 cannot return -- it has to be agreement as to the one. 18 MS. BLUM: Okay. And do they have to agree to 19 the same one for each plaintiff? 20 THE COURT: No, I mean -- 21 MS. BLUM: Okay. 22 THE COURT: I mean they could find as to 23 Mr. Alvarado that it was intentional. They could find as 24 to, you know, somebody else, Ms. Santos, that it was 25 wanton, that would be true. I think that's pretty clear 1809 1 because each one is a separate case, separate claims, but 2 they do have to agree -- are we in agreement on this? 3 MS. BLUM: Yes, I just thought that might be a 4 point of clarification. 5 THE COURT: That's a good point. Very good 6 point. What do you think we ought to do? That was the 7 other question was -- 8 MS. BLUM: Oh, right. Yes, I guess -- I mean I 9 think we should keep it real simple. If you want to bring 10 them in and just state, as you said, that it has to be 11 unanimous and just make sure they understand it is -- that 12 were any of the four, and then to clarify for them that 13 each plaintiff's case is separate, and on one case they 14 might find that the defendant's conduct intentional or 15 another case they might find the defendant's conduct 16 malicious, and another case they find the defendant's 17 conduct reckless; but that they don't have to find all 18 four components, elements, whatever, or factors in each 19 case. I think -- my reading of the question was that that 20 was a concern. 21 THE COURT: Okay. Well, it is always tougher 22 on the defendant when you get a question like this, you 23 never you know never what it means. I have had this 24 question before and then actually find for the defense on 25 everything. Sometimes it is an academic question, but it 1810 1 is important, and does the defense have a position on it? 2 MR. FARGARSON: Yes, sir, we certainly do. We 3 believe that we agreed on those jury instructions, that 4 they were submitted to the jury and that they need to make 5 the decision within the confines of the instructions, and 6 they just need to be told that the instructions have their 7 direction, and they're to make whatever decisions they 8 make based on those instructions without any other 9 illustration, qualification or expansion on the jury 10 instruction. I don't think they need to be brought in 11 here and explained anything. I think they just need to be 12 sent a note and told they have got the jury instructions, 13 the court has given them the guidelines for them to judge 14 the facts and the decision and to make the decision on 15 that basis without any other expansion one way or the 16 other, without any other explanation. The instructions 17 are clear enough, we all agreed on them, the court charged 18 them, and they're reasonable jurors and ought to be able 19 to come up with the answer like that. And they sent a 20 note, and I think the court should sent them a note back 21 the same way and not bring them in here and give a whole 22 bunch of other explanations of what they could do or 23 couldn't do. 24 THE COURT: Ms. Blum, what do you think about 25 that? Or whoever wishes to address it, response? 1811 1 MR. ESQUIVEL: Your Honor, the idea of sending 2 them a note is fine. I believe what Your Honor suggested 3 we do is not expand the charge and doesn't go beyond 4 merely restating what the charge was, which is to point 5 out to the jury that these are not elements, these are 6 factors that are in the disjunctive, and they need to find 7 one only in order to award punitive damages, and I think 8 that is proper given the question to make that -- point 9 that out to the jury and refer them back to the 10 definitions of those four terms that they have been 11 instructed on. 12 THE COURT: Okay. Well, I'm going to proceed 13 in the way that plaintiffs have outlined and that we have 14 discussed. I understand the position of the defense, and 15 sometimes that's what I tell the jury, just go back and 16 read them again. There is a possibility that the concept 17 of disjunctive and conjunctive is just foreign or disputed 18 within the panel, it doesn't matter whether it is -- 19 whether some agree with the normal instruction and some 20 don't; the point would be that if one person is confused 21 on a point, we need to clarify it. While the language 22 itself is clear, and I agree that the language is clear, 23 obviously somebody doesn't agree the language is clear, so 24 I think we need to do that. 25 Is everybody here yet? 1812 1 THE COURT SECURITY OFFICER: Yes, Your Honor. 2 THE COURT: Why don't we have the panel come 3 in? I think it is easier and more understandable if they 4 see somebody explain it. I think that's probably the 5 preferable way to do it since I'm not adding anything 6 really, just sort of explaining it to them. Have the 7 panel come back in. 8 (Jury in at 8:45 p.m.) 9 THE COURT: All right. You may be seated. 10 Ms. Richardson, I have the notes. I'm going to read them 11 out loud, that's what we do every time, and then I will go 12 through our -- we have discussed the matter, and I will go 13 through the response that I have concluded that we need to 14 make. 15 The first note is may we have a few more copies 16 of the general instructions in order to expedite matters 17 and, of course, we did that. We made copies, and if you 18 need more, we will make more of those. And then you did 19 ask for an easel, we appreciate the note, because we did 20 send you back an easel. 21 The next note, and these are the ones that we 22 need to respond to in more detail, was for punitive 23 damages, the jurors need to know if we need a unanimous 24 vote, and the answer is yes. Those are just like 25 everything else, it is just every one has to agree. You 1813 1 have to agree on each answer that's given, as I indicated 2 earlier in the verdict form, and that would mean that as 3 to each party that you're considering, for example, an 4 individual claim, you all have to agree on that claim, 5 and your response to that claim. 6 The next question was we need clarification on 7 the four elements that are necessary for awarding punitive 8 damages from me. And this was something in which we made 9 an educated guess, we weren't exactly sure, we thought 10 that the reference was -- and if we're wrong, please send 11 me another note -- the reference was to the concepts of 12 intentional, malicious, wanton and reckless. Maybe we got 13 that wrong. That's what we're guessing. That's what we 14 got right. Okay, now, that's disjunctive. You only have 15 to show one of them as to a particular thing, but you all 16 have to agree, it has to be unanimous as to which one as 17 to a particular claim. So if you have plaintiff number 18 one -- I'm just going to use a number, not meaning 19 anybody -- as to that plaintiff, if you find for the 20 plaintiff, and then if you find -- then the question is 21 was the -- in the verdict form -- Joe, let me have a copy 22 of the verdict form. Somehow we didn't bring that out 23 here for me. In the verdict form, again, it is 24 disjunctive. Now, you all have to agree on which one. So 25 if four of you think that it is or -- one thinks it is 1814 1 malicious and one thinks it is wanton and one thinks it is 2 reckless and one thinks it is intentional, but if there 3 were just four of you couldn't agree that it was either -- 4 that it was intentional, for example, then you could not 5 find for the plaintiff on that claim. All nine of have 6 you to agree on which -- on the one that it is. But it 7 only has to be one of them. It is disjunctive. So in 8 answering that question -- I'm going to look at that 9 question. Do you find that Nicolas Carranza's conduct was 10 intentional, malicious, wanton or reckless, and you can 11 read that this way. You can say do you find that 12 Defendant Nicolas -- that Nicolas Carranza's conduct was 13 intention. It is either yes or no, all nine of you. Or 14 malicious, it is either yes or no, all nine of you. On 15 the yes, I suppose, part of it, because if you're not 16 unanimous, the answer is no. And then wanton, well, 17 that's a separate one, and for reckless, so -- on any of 18 those four components or things that can constitute a 19 basis for an award of punitive damages, you all nine agree 20 that that is correct, that the answer is yes, then the 21 answer is yes. But if all nine of you do not agree on any 22 one of the four that it is yes, then, of course, the 23 answer is no. I hope that is not too obtuse. I'm sure 24 you have gone over it a number of times. 25 Of course, as to each defendant, you make a 1815 1 separate decision, which I indicated earlier, so as 2 plaintiff, you know, four, it could be that you all -- or 3 five, you could agree that it was intentional, and on 4 plaintiff two, you could all agree that it was malicious, 5 you see what I'm saying? But you all have to agree as to 6 that plaintiff as to that one single thing. We had this 7 come up in other types of situations, and I hope that 8 explanation is clear. 9 Now, let me tell you one other thing. By 10 talking about this part of the instruction, I do not 11 overemphasize -- I'm not emphasizing that part of the 12 instructions. The key in all of this always is to 13 consider all of the instructions as a whole. You don't 14 just pick out one. You're to give meaning to all of the 15 instructions in light of all the other instructions, to 16 look at them altogether, very important that you not 17 overemphasize one little particular piece and then fail to 18 look at it in the big picture as with all the 19 instructions. Let me see counsel at side bar. 20 (The following proceedings had at side-bar 21 bench.) 22 THE COURT: I always try to watch the panel and 23 see if it seems to be answering the question. I think we 24 answered the question. I don't know what their answer is 25 going to be. 1816 1 MS. BLUM: There are two concerns that I had 2 that sort of occurred to me as the discussion was going 3 forward. One is that I want them to understand that they 4 don't have to tell us which was the basis. 5 THE COURT: Yeah. 6 MS. BLUM: You know, they don't have to circle 7 one of them or not. 8 THE COURT: Actually, I have had jurors circle 9 them before. 10 MS. BLUM: But I think that they -- just to 11 protect the anonymity. 12 The second thing was -- how you just instructed 13 them if they couldn't agree -- 14 THE COURT: If they can't agree, I'm right on 15 that. 16 MS. BLUM: Then it is a no? 17 THE COURT: Then the answer is no. 18 MS. BLUM: As opposed to it is hung on that 19 issue? 20 MR. ESQUIVEL: Your Honor, I would think if 21 they answer no, that would have to be unanimous verdict. 22 THE COURT: That's true. No, you're right, 23 that's fine. I will just tell them. 24 MS. BLUM: I'm sorry, yes. 25 THE COURT: No, you're exactly right. I will 1817 1 tell them they don't have to circle it. Anything else? 2 THE CLERK: Your Honor, the edited version of 3 the CD clip that we gave the jury we have never marked, do 4 you want to mark it 43A? 43 was the VCR tape. 5 MS. BLUM: Oh, okay. 6 THE CLERK: We got just the clip of what was 7 shown to the jury on the CD. 8 MR. FARGARSON: I interrupted you, go ahead. 9 THE CLERK: I'm sorry, that's it. 10 THE COURT: We have done that. We will make 11 that A. 12 (Exhibit Number 43A was marked. Description: 13 Edited version of CD.) 14 MR. FARGARSON: Let me see what you were 15 talking about, there, Patty, you mean it can be either a 16 non-unanimous yes or a non-unanimous no, there's no just 17 decision on that, is that what you're saying? 18 MS. BLUM: Yes. 19 MR. FARGARSON: It is neither way. 20 MS. BLUM: Exactly. 21 THE COURT: I think that's right. 22 MR. FARGARSON: I don't know that I agree with 23 that. In other words, if it is not a yes, it has got to 24 be a no. 25 MR. ESQUIVEL: I think the verdict has to be 1818 1 unanimous. 2 THE COURT: That's what we told them earlier. 3 It does have to be, it is an interesting idea because the 4 practical effect is that if it is a hung jury on the 5 punitive stage and they have decided the other issue, is 6 that it would be really odd that we try the punitive 7 stage, which is obviously what I had in mind, but it would 8 be really strange because you would have to retry the 9 whole compensatory stage just to get to the punitive 10 stage, which would be a really strange result, and I have 11 never had that come up, so it is sort of a challenging 12 proposition because in a criminal case you try the whole 13 thing over, and you would have to do the same thing in a 14 civil case; and yet the same jury that heard the proof on 15 the compensatory stage is expected to decide the punitive 16 stage, and that's an odd situation, but I'm going to agree 17 that that is the instruction that we should give. I think 18 it is legally correct. It is just practically difficult. 19 MR. BROOKE: Your Honor, I think rather than 20 potentially confuse the jury at this point because you 21 have given them an instruction -- 22 THE COURT: Yeah, but it was wrong, though, so 23 I'm not going to stay with it. 24 MR. BROOKE: And so I'm thinking that if you 25 have given them an instruction on that and let them come 1819 1 back with a verdict, if they came back saying we're hung 2 up on that, then would be a time to -- 3 THE COURT: I couldn't do that, that would be 4 too late because I would already have a no. 5 (The following proceedings were had in open 6 court.) 7 THE COURT: All right. First of all, let me 8 tell you something, we agreed there's one thing I said 9 that is not the way we should proceed. We're going to 10 change that. And that one thing is this: I said that you 11 all -- I suggested that if you couldn't all agree that it 12 would be a no answer, and that is not right. You all have 13 to agree whether the answer is yes or no. We said that 14 earlier. We said whatever an answer is, all nine of you 15 have to always agree. And I must admit that it is an 16 interesting thought process, but it always has to be 17 unanimous, and that's because if you're going to make a 18 decision -- you know, maybe -- one way or the other, 19 that's the way our system works, all nine of you have to 20 agree. So if you all agree as to one point, you know, 21 reckless, then that would be a yes, or any other factor, 22 but if you were not able to agree on a no or a yes, you 23 just -- it would be a problem to your decision making 24 process, we would come back and talk about it again. You 25 would say we were unable to agree on this as to this part 1820 1 of the claim, and then I would give you probably an 2 additional instruction, but that would be something that 3 we would wait and we would on it. 4 Now, I have got a note, so let me read it. 5 Okay. Let me talk -- what I'm going to do 6 is -- I'm going to let y'all retire for a minute so we can 7 talk in open without having to -- so we can do it out 8 here, and I have given you the part of the instruction and 9 I know you want to finish your coffee or your snack, and 10 that way we will have a chance to talk about this 11 additional note. I want to make copies for everybody so 12 they can see it. So we will let you be excused, we're 13 going to make a copy. I will read it and then make a 14 copy, that will make it a little faster. We will see you 15 shortly, thanks very much. 16 (Jury out at 8:55 a.m.) 17 THE COURT: All right. This one is a little 18 more specific. I will read it out loud. 19 MR. BROOKE: The door is still open, Your 20 Honor. 21 THE COURT: I know, but obviously they wrote 22 the note. It is closed now. 23 It just says: Judge McCalla, it says re: 24 Santos case, very specific, in regards to recklessly, 25 explain this part: Substantial or unjustifiable risk of 1821 1 injury or damages to another. Is the another directed 2 towards Ms. Santos or just general in nature? And we may 3 want to make a copy for you to look at. 4 Does the plaintiff have a position on this? I 5 think it is probably suggested by the first paragraph, but 6 what is the position? 7 MR. ESQUIVEL: Your Honor, the jury's question 8 is about whether the defendant's conduct has to be 9 reckless with respect to Ms. Santos in particular? 10 THE COURT: That's what it says. Well, I 11 mean -- that's what it says. 12 MR. ESQUIVEL: Right, and the plaintiffs' 13 position is that because this is a mens rea element and it 14 is the heightened mens rea that's required for punitive 15 damages, that in a command responsibility case, that mens 16 rea element ought to mirror the mens rea requirement with 17 command responsibility, which is -- does not require 18 knowledge of the particular plaintiff, but requires 19 knowledge generally of torture, extrajudicial killing or 20 crimes against humanity, and so the answer to the jury's 21 question should be that another refers to those abuses 22 generally and not to the specific plaintiff. 23 THE COURT: Anything else from -- from the 24 defense? 25 MR. FARGARSON: Well, again, Your Honor, the 1822 1 instructions given them give them information that they're 2 supposed to rely on. Adding to that is simply trying to 3 focus on the facts and point out facts which may add to 4 the instructions, and so consequently the defendant's 5 position is they have got to decide it on what they have 6 got, and these narrowing issues of facts are not to be 7 included in the instructions to the jury or to explain to 8 the jury. They have the facts, they have got the law, 9 they are to make the decision on that basis without any 10 pinpointing of certain facts or issues of fact by the 11 court at this point in the proceeding. 12 THE COURT: I think that the answer is in the 13 actual and constructive knowledge instruction itself, 14 which is -- which says the plaintiffs do not have to prove 15 that the defendant knew or should have known about the 16 abuses against the specific victims in this case. Rather, 17 the knowledge element would be satisfied if the defendant 18 knew the -- was satisfied if the plaintiffs prove that the 19 defendant knew or should have known that his subordinates 20 had committed, were committing or about to commit torture, 21 extrajudicial killing or crimes against humanity. The 22 defendant should have known that such abuses were being 23 committed if subordinates were engaged in a pattern, 24 practice or policy of committing torture, extrajudicial 25 killing or crimes against humanity. So it is not exactly 1823 1 the same, because it has to be in the context of it being 2 intentional, wanton, malicious or reckless. This is 3 somewhat the question that we brought up a long time ago 4 in our own discussions about how you distinguish between 5 compensatory damages and punitive damages in a case in 6 which the knowledge element itself is worded in the way in 7 which it is worded. 8 All right. Let's go ahead and get a -- I'm 9 going to write up something briefly, and we will see if we 10 can't send something out to you, take a look at it, and 11 then we will -- see if somebody agrees on this, we may 12 send it back to the panel. I will take a couple of 13 minutes and write that up. 14 (Recess taken at 9:00 a.m.) 15 THE COURT: Let me go back to the other matter. 16 Okay. I'm getting ready to hand this out. This is a 17 supplemental jury instruction number -- I've written 18 something because it just got too complicated not to write 19 it down, and I will read it out loud once so that you have 20 all heard this, and then we can talk about it if we 21 need -- if you think we need to. 22 Supplemental instruction number one, 23 recklessness -- and by the way, I have basically 24 incorporated the instruction that we gave earlier. It is 25 dated November the 16th, 2005, 9:00 o'clock, jury 1824 1 question, re: Santos' case. 2 In regards to recklessness, and this is how it 3 is written out, explain this part, substantial or 4 unjustifiable risk of injury or damage to another. Is the 5 other -- another directed toward Ms. Santos or just 6 general in nature? 7 Response. There are four types of conduct by a 8 defendant which if any of the four types of conduct court 9 is established by the greater weight of the evidence 10 constitutes a basis for an award of punitive damages. 11 Thus, if a defendant's conduct was either, one, 12 intentional or, two, malicious or, three, wanton or, four, 13 reckless, and you all agree on a particular type of 14 conduct, then an award of punitive damages is appropriate. 15 You have asked if the type of conduct must be specifically 16 directed in this case at a particular plaintiff in your 17 question, Ms. Santos. The answer to your question is no. 18 A plaintiff does not have to prove that the defendant knew 19 or should have known about the abuses against the specific 20 victim in this case. As you have already been instructed, 21 the plaintiffs, however, must prove that the defendant 22 knew or should have known that his subordinates had 23 committed, were committing or about to commit torture, 24 extrajudicial killing and/or crimes against humanity. The 25 defendant should have known that such abuses were being 1825 1 committed if subordinates were engaged in a pattern, 2 practice or policy of committing torture, extrajudicial 3 killing and/or crimes against humanity, but in order to 4 award punitive damages, the plaintiff must also prove that 5 defendant exhibited at least one of the four 6 characteristics described in the punitive damages 7 instruction. If no such characteristic is proven by the 8 greater weight of the evidence, then as to this question, 9 you must return a verdict for the defendant. 10 I should have written this about two weeks ago, 11 but you never know, you never know if you will need it. I 12 think this is balanced. I think we're not -- well, 13 objections or statements by the plaintiff? 14 MR. ESQUIVEL: We have no objections to this 15 instruction, Your Honor. We think it is a proper response 16 to the jury's question. 17 THE COURT: Okay. And from the defense? And 18 obviously, you see that I have made it clear that it is an 19 additional requirement, which is very important. 20 Another question? 21 THE COURT SECURITY OFFICER: Another question, 22 and they're taking a 15 or 20-minute break. 23 MR. FARGARSON: Let me go ahead and object to 24 this, and to state that we do object to it. It is an 25 addition to the charge that was specific enough, and it 1826 1 does not need any clarification and, furthermore, we 2 believe that the charge is error. And to the element of 3 punitive damages, it should be to the specific person 4 because it is a person that is being compensated. 5 THE COURT: Well, some of these issues are 6 simply -- I think this is the best statement of the 7 current law that I can make, and there may be later on 8 some interesting issues presented in an appropriate case, 9 to an appellate panel, perhaps another panel. 10 All right. I'm going to hand this to Mr. Ruby 11 to go back and -- Joe, you need to mark one copy. I think 12 we have we have given all ours away. We need two more 13 copies of the general instructions. We will make two more 14 copies. We will make extra copies of the little 15 instruction that we sent back now, which incorporates the 16 things we previously sent. 17 All right. Joe, do we have one other matter? 18 THE CLERK: We have a sentencing on 19 Ms. Jenkins. I have those materials right here. 20 THE COURT: You can actually stay where you are 21 if you want to, but you're also welcome to be excused if 22 you like. 23 MR. FARGARSON: Your Honor, I have written on 24 the supplemental instruction objected to by the defendant, 25 and I would like to have it filed as part of the record. 1827 1 THE COURT: That's perfectly fine, and we will 2 reflect that, although the oral objection would be 3 sufficient also. All right. 4 MR. ESQUIVEL: May we be excused or should we 5 stay in the courthouse for some period of time, does Your 6 Honor have a preference? 7 THE COURT: They're on a 15-minute break, so 8 you can certainly -- you're welcome to be here, but it is 9 up to you. I don't have a reference. We have your phone 10 numbers, we can get ahold of you. Thanks very much. 11 (The jury was sent supplemental instruction 12 number one.) 13 (Jury was excused at 5:15 p.m.) 14 15 16 17 18 19 20 21 22 23 24 25