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CAUSE NO. 22 294327
DNOW, L.P. dba DISTRIBUTIONNOW, IN THE DISTRICT COURT OF
Plaintiff,
TOBY EOFF, JUSTIN COE, RYAN
HIBBETTS, MICHAELWHEELER,
KALE GARRETSON, BRIAN MADISON, FORT BEND COUNTY, TEXAS
MICHAEL KASPAR, BRUCE WAYNE
STEUBING, RYAN WHEELER, RUSSELL
DAUPHIN, PERMIAN PUMP & VALVE,
and CLAYTON KENWORTHY, MICHAEL
COMRIE, JACOB LEWALLEN, and BO
YOUNG,
Defendants. JUDICIAL DISTRICT
DEFENDANT RESPONSE IN OPPOSITION TO
PLAINTIFF’S MOTION FOR INTERIM OPENING STATEMENTS
Defendant Toby Eoff Justin Coe, Ryan Hibbetts, Michael Wheeler, Kale Garretson, Brian
Madison, Michael Kaspar, Bruce Wayne Steubing, Ryan Wheeler, Russell Dauphin, Michael
Comrie, Jacob Lewallen, and Bo Young (collectively, “Defendants”) this response to
Plaintiff’s Motion For Interim Opening Statements (“Motion”)
SUMMARY
Plaintiff DNOW L.P. d/b/a Distribution Now (“DNOW” or “Plaintiff”) seeks a second
bite at the argument apple in an attempt to improperly bolster its case. Plaintiff’s reasoning in
circular if it wants the jury to recall the evidence promised in opening statement then the parties
should proceed with the evidence. More argument from the attorneys only further disrupts the trial
and is quite frankly the last thing this case needs after only two complete witnesses.
Plaintiff cites no authority that supports its position the rule and cases referenced do not
support Plaintiff’s claims for a 45 minute interim argument per side Interim arguments were
5046.4
specifically addressed and rejected by the Texas Legislature. And, there is no rule or case which
would allow such statements or arguments mid-trial.
The Court should also deny DNOW’s motion because Plaintiff also seeks to argue evidence
that was already presented to the jury. Amended Mot. P. 3. Texas Rule of Civil Procedure 269
provides the timing for argument of evidence. Only “[a]fter the evidence is concluded and the
charge is read, the parties may argue the case to the jury.” TEX. R. CIV. P. 269 (a) (emphasis
added).
The interim arguments should be denied for several reasons. First, DNOW cannot
seriously contend that it wants the jury to listen again to the same openings already presented to
the jury after just two witnesses. That would be repetitive and a waste of the jury and Court’s
time. Second, DNOW’s counsel frequently reminds the jury of the statements made in both
openings. Third, the jury appears extremely attentive. Fourth, a trial board—Plaintiff’s oft-
referenced “Mob Board”—is prominently displayed, pointed at, and tapped (repeatedly)
throughout DNOW’s trial witness examinations for a constant reminder of every relevant person
in this case (not to mention the parties’ daily appearances and ongoing reintroductions in the
courtroom). And finally, judicial efficiency requires the evidence continue without further
argument. A minimum of additional fifteen (15) witnesses will testify, which will undoubtedly
take several weeks at the current pace.
Simply put, the circumstances do not justify an interim statement even if the Texas Rules
of Civil Procedure allowed it, and even if it would not be so extremely prejudicial to the
defendants.
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ARGUMENTS AND AUTHORITIES
1. Plaintiff’s Legal Analysis Fails to Address Interim Arguments.
DNOW cites an irrelevant statute as support for interim arguments. Texas Rule of
Evidence 611 merely addresses the “mode and order of examining witnesses and presenting
evidence.” TEX. R. EVID. 611. What DNOW requests from the Court does not deal with the
presentation of evidence or even cross-examination of witnesses. This request is inappropriate
and does not find support in Rule 611.
Nor does DNOW’s reference to State v. Gaylor Inv. Tr. P’ship support its request for
interim statements. 322 S.W.3d 814, 819 (Tex. App.—Houston [14th Dist.] 2010, no pet.). In
Gaylor, the Court of Appeals held that the trial court did not abuse its discretion under Rule 611
when it limited each side to one expert witness. This is because, as the Court of Appeals noted,
Rule 611 gives trial courts the ability to “exercise reasonable control over the mode and order of
examining witnesses.” TEX. R. EVID. 611 (emphasis added). The motion is wholly unrelated to
the presentation of evidence but is focused exclusively on argument of counsel. The case and
holding has no relevance to DNOW’s pending motion.
The last case cited by Plaintiff, Corona v. State, provides no better support. No. 09-21-
00257-CR et al, 2022 WL 14708981 (Tex. App.—Beaumont Oct. 26, 2022, no pet. h.). In this
child molestation case, trial was paused due to the hospitalization of the defendant. The court
disfavored a mistrial because of the amount of sensitive evidence [including facts relating to child
molestation] that had already been presented in the case, and, along with the jury’s input on
scheduling, reset the case. Id. at *13. After the jury selected a date that resulted in a four-week
continuance, the court permitted the parties to make a “mini opening statement to trigger the jury’s
memory to let them know what is going on.” Id. The mini-openings permitted by the court
were five minutes long. Id. at *14. This is a far cry from the 45 minutes per side (taking up
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another half day of trial time) requested by the Plaintiff. Plaintiff provides no authority whatsoever
that supports its improper request, and this is sufficient reason to deny Plaintiff’s motion.
2. Recent Case Law Provides a Mistrial is the Proper Remedy.
Plaintiff requests an interim summary to remind the jury of its opening statement and a
summary of actual evidence presented. See Plaintiffs’ Motion at p. 3. As an initial matter, Plaintiff
has repeatedly referenced the parties’ opening statements throughout trial, and is likely to continue
this pattern, negating the need for a reprise of the cumulative argument.
Plaintiff’s concern that the jurors will not remember the evidence is likewise unavailing.
Slightly more than a week before this hearing, on December 19, 2022, the United States District
Court for the Northern District of Texas (Dallas Division) addressed this issue head on. In United
States v. Noryian, the trial was paused 32 days due to an attorney’s illness. In preparing to resume,
the Government was concerned the jurors would not remember the names of witnesses who had
testified (in our case, this is only 2, plus the witnesses who is currently on the stand). 3:17-CR-
155-L (N.D. Tex. Dec. 19, 2022).1 The defendants further “expressed concern as to whether jurors
would be able to recall key testimony and evidence.” Id. at p. 2.
The court carefully considered the juror’s ability to independently recall key testimony and
evidence without relying heavily on notetaking. Id. at p. 4. Each juror is required to rely on his
or her independent recollection of the testimony and evidence presented in court. Id. The court
further acknowledged that in a month long delay, memories may well fade. Where a delay in a
case is long enough to impair the juror’s independent recollection of the evidence, the proper
remedy is a mistrial, not additional argument.
Plaintiff cannot have it both ways. Plaintiff contends the break over the holidays is so long
1
This opinion is attached at Appendix A.
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that the juror’s recollection is imperiled, and this is cured through additional argument. Plaintiff’s
remedy is more harm than cure; if the jurors have a failing memory, Plaintiff seeks to refresh that
memory with additional argument from counsel. Itis wholly improper – and Plaintiff cites no
support – to allow argument of counsel to replace the juror’s recollection of the testimony and
evidence presented. If the memory is sufficiently robust such that the recollection of the evidence
will not be impeded by argument, then no argument is necessary. For this additional reason,
Plaintiff’s motion should be denied. If the juror’s recollection has failed to the extent such
refresher argument is necessary, the solution is a mistrial.
3. The Texas Rules of Civil Procedure do not permit interim opening arguments.
Texas Rules of Civil Procedure 265 and 269 dictate the order of the opening, evidence, and
argument. Rule 265 requires that opening statements be heard before the plaintiff presents its
evidence. The Rules of Civil Procedure expressly sets out the timing for any other argument. Only
“[a]fter the evidence is concluded and the charge is read, the parties may argue the case to the
jury.” TEX. R. CIV. P. 269 (a) (emphasis added). There is no provision for interim summaries to
be given by counsel, which is what DNOW truly desires and seeks in its motion. In 2007, a bill
was introduced to allow interim summations in jury trials. The Texas Legislature did not pass the
bill. See 2007 Texas Senate Bill No. 1300.2
DNOW conveniently ignores the applicable rules and cites in support of its motion only
Texas Rule of Evidence 611 that addresses the “mode and order of examining witnesses and
presenting evidence.” TEX. R. EVID. 611. What DNOW requests from the Court does not deal
with the presentation of evidence or even cross-examination of witnesses. Rather, DNOW requests
2
Exhibit A, 2007 Texas Senate Bill No. 1300. The Bill was never considered by the House and was not passed. See
SB 1300 Bill Stages, TEX. LEG. ONLINE, https://capitol.texas.gov/BillLookup/BillStages.aspx?LegSess=80R&
Bill=SB1300 (accessed on Dec. 26, 2022).
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the ability to argue its case to the jury before the evidence is closed. This request is inappropriate,
does not find support in Rule 611, and conflicts with the Texas Rules of Civil Procedure 265 and
269.
“With the disrupted schedule, how can [the jury] be charged with remembering even the
names of all the parties and the evidence both promised in opening statement….” Plaintiff has,
however, waived its right to complain on this issue by consenting to both trial recesses. If Plaintiff
truly believes that the jury is unable to remember the evidence or the names of the parties, the only
appropriate remedy is a mistrial. See United States v. Noryian No. 3:17-cr-00155-L at p. 2, 4-5
(holding that where jurors cannot recall evidence, including the names and job titles of witnesses,
mistrial is the appropriate remedy).
4. Defendants will be prejudiced by interim opening statements.
Any interim argument would only benefit Plaintiff at the expense of Defendants.
Permitting Defendants to make equal “interim opening statements” would not cure this prejudice,
as only Plaintiff’s case has been presented. “Summation of evidence and engaging in reasonable
deductions from the evidence” are areas of argument and should be set aside for the time reserved
for argument. Matter of Marriage of Brisco, No. 07-21-00196-CV, 2022 WL 2982512, at *4 (Tex.
App.—Amarillo July 28, 2022, no pet.). Moreover, causing further delay of an additional half day
of trial to permit time for unnecessary argument further prejudices Defendants, as juror frustration
is likely to grow as the case continues, and Defendants are still weeks away from presenting their
case in chief. All parties will have the chance to argue their case after all the evidence is
introduced, the evidence is closed, and the charge is read, as prescribed by Rule 269.
CONCLUSION
For these reasons, the Court should deny Plaintiff’s Motion For Interim Opening
Statements.
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Respectfully submitted,
WEYCER KAPLAN PULASKI & ZUBER, PC
By: /s/ Mark J. Levine
Mark J. Levine
Texas Bar No. 00791102
mlevine@wkpz.com
Hamed Moradi
Texas Bar No. 24121020
hmoradi@wkpz.com
24 Greenway Plaza, Ste 2050
Houston, Texas 77046
Telephone: (713) 961-9045
Facsimile: (713) 961-5341
and
ATKINS, HOLLMANN, JONES,
PEACOCK, LEWIS & LYON, INC.
Murray A. “Trey” Crutcher, III
State Bar No. 24028169
tcrutcher@odessalawfirm.com
Alex Reynolds
State Bar No. 24116955
areynolds@odessalawfirm.com
3800 East 42nd Street, Suite 500
Odessa, Texas 79762
Telephone: (432) 331-1600
Fax: (432) 363-1310
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4879-2841-5046.4
ATTORNEYS FOR DEFENDANT
TOBY EOFF
FOLEY & LARDNER LLP
By: /s/ Rachel P. Steely
Rachel Powitzky Steely
Texas Bar No. 00792770
rsteely@foley.com
Jessica Glatzer Mason
Texas Bar No. 24051001
jmason@foley.com
Taylor Appling
Texas Bar No. 24096284
tappling@foley.com
1000 Louisiana Street
Suite 2000
Houston, Texas 77002
Telephone: (713) 276-5500
Facsimile: (713) 276-5555
ATTORNEYS FOR DEFENDANTS
JUSTIN COE, RYAN HIBBETS, MICHAEL
WHEELER, KALE GARRETSON, BRIAN
MADISON, MICHAEL KASPAR, BRUCE
WAYNE STEUBING, RYAN WHEELER,
RUSSELL DAUPHIN, MICHAEL COMRIE,
JACOB LEWALLEN and BO YOUNG
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing has been served on all counsel of
record in compliance with the Texas Rules of Civil Procedure on this December 27, 2022.
/s/ Rachel P. Steely
Rachel P. Steely
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Exhibit A
Appendix A
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
UNITED STATES OF AMERICA
riminal Case
JAMSHID NORYIAN (01)
DEHSHID NOURIAN (02)
CHRISTOPHER RYDBERG (03)
MICHAEL TABA (07)
MEMORANDUM OPINION AND ORDE
During the status conference on November 21, 2022, Defendants Jamshid Noryian,
hshid Nourian, Christopher Rydber, and Michael Taba (“Defendants”) orally moved the court
to declare a mistrial in light of the delay of thirty two days or more that would result before the
trial could recommence after one of the defense attorneys underwent an emergency medical
procedure.In the status conference and the subsequent briefing filed by the parties on November
25, 2022 (Docs. 503, 504), the defense reurged its request for a mistrial, and Government expressed
its opposition to a mistrial. For the reasons that follow, the cour grants Defendants’ oral and
written request for a mistrial (Doc. 504).
On October 19, 2022, a jury was impaneled in this multi defendant healthcare fraud case,
and the Government began to present its evidence and witnesses the next day. The Government
presented its case in chief for six days from October 20 through October 28, 2022, before the
court was notified on October 31, 2022, that Defendant Noryian’s attorney had a medical
emergency that required immediate attention. Defendant Noryian’s attorney requested and was
granted a seven day continuance of the trial, and subsequently kept the court apprised of his
Trial was not conducted on Mondays (or weekends) to allow the court to handle its criminal docket, and to allow the
attorneys time to tend to other necessary legal matters associated with their law practices.
Memorandum Opinion and Order Page
medical condition and ability to resume his representation of Mr. Noryian in the trial of this case.
More time than anticipated was needed for his recovery from his surgery, and the court had already
told the attorneys and the jurors during jury selection that the trial would not be conducted during
the week of Thanksgiving. As a result, the trial could not resume before November 28, 2022.
ncerned about the prolonged delay, the court scheduled a status conference with the parties and
their attorneys on November 21, 2022, to determine how the caseshould proceed.
During the status conference, the Government proposed ways to speed up the remaining
trial proceedings. To assist in refreshing the jurors’ memories, the Government also suggested
that the jurors be provided with the names of witnesses who had testified to date and their job
titles, as well as a review of the offenses charged The Government represented that it could finish
putting on its case chief in one week.
Defendants anticipated that they would need two to three weeks total to put on their
respective defenses. They also expressed concern as to whether jurors would be able to recall key
testimony and evidence. In addition, because jurors were told during jury selection that the trial
was expected to be finished by the first week of December, Defendants were concerned that jurors
would be distracted, rush their deliberations, and hold the delay against them if the trial continued
up until or after breaking again for the Christmas and New Year holiday . Defendants disagreed
that the Government’s suggestions could cure the likely prejudice to them if a mistrial was not
granted, and they argued that disagreement over what information would be provided to refresh
jurors’ memories would only further delay the trialFor these reasons, Defendants expres sed,
individually under oath and through counsel, their unanimous agreement and request for the court
to declare a mistrial.
Memorandum Opinion and Order Page
The court indicated that, before ruling on the matter, it would poll the jurors in the presence
of the parties and their counsel. At the Government’s request, the court also allowed the parties to
brief their respective positions of whether a mistrial was warranted. The parties’ briefs reurged
and expanded slightly as to the arguments that were made during the status conference.
November 29, 2022, the court conducted a hearing to poll the jurors. Because of the time lapse,
the jurors who took notes indicated that they would have to rely more on their note rather than
their memories and independent ability to recall the evidence presented before the day break.
After considering the parties’ oral and written arguments, the jurors’ answers to various questions
posed by the undersigned, the record, and applicable law, the court determines that a mistrial is
warranted in this case
The power of a court to order mistrial “ought to be used with the greatest caution, under
urgent circumstances, and for very plain and obvious causes.” United States v. Conlan, 786 F.3d
380, 392 (5th Cir. 2015). hen a defendant does not consent to a mi strial the [Double Jeopardy]
Clause permits reprosecution only if there was manifest necessity for the mistrial.” United States
v. Fisher, 624 F.3d 713, 718 (5th Cir. 2010) (emphasis added) (citing Arizona v. Washington
U.S. 497, 505 (1978)). here is no double jeopardy concern, however, when a defendant consents
to a mistrial Downum v. United States, 372 U.S. 734, 738 (1963). Thus, when a mistrial is
declared at the request of a defendant, jeopardy continues, and retrial is generally allowed because
in such circumstances the defendant consents to a disposition that contemplates reprosecution.
Evans v. Michigan, 133 S. Ct. 1069, 1079 (2013).
Here, Defendants, individually and through their counsel, expressly waive their double
jeopardy protections in requesting and consenting to a mistrial before a verdict was reached
Consequently, a finding of manifest necessity is not required for the court to order a mistrial in
Memorandum Opinion and Order Page
this caseSee Downum, 372 U.S. at 738; ee also Blueford v. Arkansas, 566 U.S. 599, 610
(2012) (Sotomayor, J., dissenting) (“[A] trial judge may not defeat a defendant’s entitlement to
‘the verdict of a tribunal he might believe to be favorably disposed to his fate’ by declaring a
mistrial before deliberations end, absent a defendant’s consent a ‘manifest necessity’ to do
so.”) (emphasis added) (quoting United States v. Jorn, 400 U.S. 470, 48 (1971), which explained
that n the absence of a defendant’s consent or motion for mistrial by the defendant, the trial court
is bound by and must apply “the doctrine of manifest necessity” in exercising its discretion to
declare a mistrial (plurality opinion)).
Based on United States v. Thomas, 627 F.3d 146 (5th Cir. 2010), the Government contends
that, “[t]o warrant a mistrial, ‘the defendant bears the burden of showing specific and compelling
ejudice that [would] r sult[] in an unfair trial, and such prejudice must be of a type that against
which the trial court [is] unable to afford protection.’” Govt. Br. 3 (quoting Thomas, 627 F.3d at
. The Government further contends that Defendants have not carried their “heavy burden.”
The authority relied on by the Government does not persuade the court that the standard advocated
by it applies to the issue of whether a mistrial should be granted in this case, particularly given
Defendants’ request for a mistrial and unanimous consent
Moreover, the quoted language from Thomas is taken out of context.Thomas involved an
appeal by a defendan regarding the denial of his motion to sever motion for mistrial, which
were addressed separatelyId. at 157 The language quoted by the Government pertains to the
Fifth Circuit’s discussion in Thomas regarding the district court’s denial of the defendant’s motion
for severanceId. at 157.
Further, the court shares Defendants’ serious concern about the jurors’ ability to
independently recall key testimony and evidence without relying heavily on their prior notetaking
Memorandum Opinion and Order Page
Given the jurors’ responses to the court’s questions in this regard, the inclusion of a jury instruction
in the charge that jurors should not place too much reliance on their notes would be unavailing.
Specifically, when the court polled the jury and three alternates, nine stated that they would rely
more on their notes than their independent recollection or memory if they could not recall a piece
of evidence or the testimony of a witness. Such position is in conflict with the court’s instruction
that jurors’ notes are only an aid to their memories and cannot be substituted for their memory or
independent recollection of the evidence. Common sense and reason necessarily cause a person to
reasonably conclude that memories fade significantly after a 32 day gap in a trial.
Additionally, while the schedules and personal conflicts of the jurors are not dispositive
when considering whether to grant a mistrial, the court agrees with Defendants that some jurors,
particularly those that did not wish to be on the jury in the first place because of personal and work
related conflicts, would likely be distracted and inclined to rush their deliberations if the trial
continued up until or after the holidays. The court, therefore, determines that Defendants would
be legally prejudiced if their request for a mistrial was not granted.
For all of these reasons and those discussed on the record when this issue was addressed,
the court grants Defendants’ oral and written request for a mistrial (Doc. 504).The trial of this
case will be reset by separate order to a later date based on the parties’ availability and the court’s
current trial docket
It is so orderedthis 19thday of December
Sam A. Lindsay
United States District Judg
Memorandum Opinion and Order Page
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CAUSE NO. 22 294327 DNOW, L.P. dba DISTRIBUTIONNOW, IN THE DISTRICT COURT OF Plaintiff, TOBY EOFF, JUSTIN COE, RYAN HIBBETTS, MICHAELWHEELER, KALE GARRETSON, BRIAN MADISON, FORT BEND COUNTY, TEXAS MICHAEL KASPAR, BRUCE WAYNE STEUBING, RYAN WHEELER, RUSSELL DAUPHIN, PERMIAN PUMP & VALVE, and CLAYTON KENWORTHY, MICHAEL COMRIE, JACOB LEWALLEN, and BO YOUNG, Defendants. JUDICIAL DISTRICT DEFENDANT RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR INTERIM OPENING STATEMENTS Defendant Toby Eoff Justin Coe, Ryan Hibbetts, Michael Wheeler, Kale Garretson, Brian Madison, Michael Kaspar, Bruce Wayne Steubing, Ryan Wheeler, Russell Dauphin, Michael Comrie, Jacob Lewallen, and Bo Young (collectively, “Defendants”) this response to Plaintiff’s Motion For Interim Opening Statements (“Motion”) SUMMARY Plaintiff DNOW L.P. d/b/a Distribution Now (“DNOW” or “Plaintiff”) seeks a second bite at the argument apple in an attempt to improperly bolster its case. Plaintiff’s reasoning in circular if it wants the jury to recall the evidence promised in opening statement then the parties should proceed with the evidence. More argument from the attorneys only further disrupts the trial and is quite frankly the last thing this case needs after only two complete witnesses. Plaintiff cites no authority that supports its position the rule and cases referenced do not support Plaintiff’s claims for a 45 minute interim argument per side Interim arguments were 5046.4 specifically addressed and rejected by the Texas Legislature. And, there is no rule or case which would allow such statements or arguments mid-trial. The Court should also deny DNOW’s motion because Plaintiff also seeks to argue evidence that was already presented to the jury. Amended Mot. P. 3. Texas Rule of Civil Procedure 269 provides the timing for argument of evidence. Only “[a]fter the evidence is concluded and the charge is read, the parties may argue the case to the jury.” TEX. R. CIV. P. 269 (a) (emphasis added). The interim arguments should be denied for several reasons. First, DNOW cannot seriously contend that it wants the jury to listen again to the same openings already presented to the jury after just two witnesses. That would be repetitive and a waste of the jury and Court’s time. Second, DNOW’s counsel frequently reminds the jury of the statements made in both openings. Third, the jury appears extremely attentive. Fourth, a trial board—Plaintiff’s oft- referenced “Mob Board”—is prominently displayed, pointed at, and tapped (repeatedly) throughout DNOW’s trial witness examinations for a constant reminder of every relevant person in this case (not to mention the parties’ daily appearances and ongoing reintroductions in the courtroom). And finally, judicial efficiency requires the evidence continue without further argument. A minimum of additional fifteen (15) witnesses will testify, which will undoubtedly take several weeks at the current pace. Simply put, the circumstances do not justify an interim statement even if the Texas Rules of Civil Procedure allowed it, and even if it would not be so extremely prejudicial to the defendants. 2 4879-2841-5046.4 ARGUMENTS AND AUTHORITIES 1. Plaintiff’s Legal Analysis Fails to Address Interim Arguments. DNOW cites an irrelevant statute as support for interim arguments. Texas Rule of Evidence 611 merely addresses the “mode and order of examining witnesses and presenting evidence.” TEX. R. EVID. 611. What DNOW requests from the Court does not deal with the presentation of evidence or even cross-examination of witnesses. This request is inappropriate and does not find support in Rule 611. Nor does DNOW’s reference to State v. Gaylor Inv. Tr. P’ship support its request for interim statements. 322 S.W.3d 814, 819 (Tex. App.—Houston [14th Dist.] 2010, no pet.). In Gaylor, the Court of Appeals held that the trial court did not abuse its discretion under Rule 611 when it limited each side to one expert witness. This is because, as the Court of Appeals noted, Rule 611 gives trial courts the ability to “exercise reasonable control over the mode and order of examining witnesses.” TEX. R. EVID. 611 (emphasis added). The motion is wholly unrelated to the presentation of evidence but is focused exclusively on argument of counsel. The case and holding has no relevance to DNOW’s pending motion. The last case cited by Plaintiff, Corona v. State, provides no better support. No. 09-21- 00257-CR et al, 2022 WL 14708981 (Tex. App.—Beaumont Oct. 26, 2022, no pet. h.). In this child molestation case, trial was paused due to the hospitalization of the defendant. The court disfavored a mistrial because of the amount of sensitive evidence [including facts relating to child molestation] that had already been presented in the case, and, along with the jury’s input on scheduling, reset the case. Id. at *13. After the jury selected a date that resulted in a four-week continuance, the court permitted the parties to make a “mini opening statement to trigger the jury’s memory to let them know what is going on.” Id. The mini-openings permitted by the court were five minutes long. Id. at *14. This is a far cry from the 45 minutes per side (taking up 3 4879-2841-5046.4 another half day of trial time) requested by the Plaintiff. Plaintiff provides no authority whatsoever that supports its improper request, and this is sufficient reason to deny Plaintiff’s motion. 2. Recent Case Law Provides a Mistrial is the Proper Remedy. Plaintiff requests an interim summary to remind the jury of its opening statement and a summary of actual evidence presented. See Plaintiffs’ Motion at p. 3. As an initial matter, Plaintiff has repeatedly referenced the parties’ opening statements throughout trial, and is likely to continue this pattern, negating the need for a reprise of the cumulative argument. Plaintiff’s concern that the jurors will not remember the evidence is likewise unavailing. Slightly more than a week before this hearing, on December 19, 2022, the United States District Court for the Northern District of Texas (Dallas Division) addressed this issue head on. In United States v. Noryian, the trial was paused 32 days due to an attorney’s illness. In preparing to resume, the Government was concerned the jurors would not remember the names of witnesses who had testified (in our case, this is only 2, plus the witnesses who is currently on the stand). 3:17-CR- 155-L (N.D. Tex. Dec. 19, 2022).1 The defendants further “expressed concern as to whether jurors would be able to recall key testimony and evidence.” Id. at p. 2. The court carefully considered the juror’s ability to independently recall key testimony and evidence without relying heavily on notetaking. Id. at p. 4. Each juror is required to rely on his or her independent recollection of the testimony and evidence presented in court. Id. The court further acknowledged that in a month long delay, memories may well fade. Where a delay in a case is long enough to impair the juror’s independent recollection of the evidence, the proper remedy is a mistrial, not additional argument. Plaintiff cannot have it both ways. Plaintiff contends the break over the holidays is so long 1 This opinion is attached at Appendix A. 4 4879-2841-5046.4 that the juror’s recollection is imperiled, and this is cured through additional argument. Plaintiff’s remedy is more harm than cure; if the jurors have a failing memory, Plaintiff seeks to refresh that memory with additional argument from counsel. Itis wholly improper – and Plaintiff cites no support – to allow argument of counsel to replace the juror’s recollection of the testimony and evidence presented. If the memory is sufficiently robust such that the recollection of the evidence will not be impeded by argument, then no argument is necessary. For this additional reason, Plaintiff’s motion should be denied. If the juror’s recollection has failed to the extent such refresher argument is necessary, the solution is a mistrial. 3. The Texas Rules of Civil Procedure do not permit interim opening arguments. Texas Rules of Civil Procedure 265 and 269 dictate the order of the opening, evidence, and argument. Rule 265 requires that opening statements be heard before the plaintiff presents its evidence. The Rules of Civil Procedure expressly sets out the timing for any other argument. Only “[a]fter the evidence is concluded and the charge is read, the parties may argue the case to the jury.” TEX. R. CIV. P. 269 (a) (emphasis added). There is no provision for interim summaries to be given by counsel, which is what DNOW truly desires and seeks in its motion. In 2007, a bill was introduced to allow interim summations in jury trials. The Texas Legislature did not pass the bill. See 2007 Texas Senate Bill No. 1300.2 DNOW conveniently ignores the applicable rules and cites in support of its motion only Texas Rule of Evidence 611 that addresses the “mode and order of examining witnesses and presenting evidence.” TEX. R. EVID. 611. What DNOW requests from the Court does not deal with the presentation of evidence or even cross-examination of witnesses. Rather, DNOW requests 2 Exhibit A, 2007 Texas Senate Bill No. 1300. The Bill was never considered by the House and was not passed. See SB 1300 Bill Stages, TEX. LEG. ONLINE, https://capitol.texas.gov/BillLookup/BillStages.aspx?LegSess=80R& Bill=SB1300 (accessed on Dec. 26, 2022). 5 4879-2841-5046.4 the ability to argue its case to the jury before the evidence is closed. This request is inappropriate, does not find support in Rule 611, and conflicts with the Texas Rules of Civil Procedure 265 and 269. “With the disrupted schedule, how can [the jury] be charged with remembering even the names of all the parties and the evidence both promised in opening statement….” Plaintiff has, however, waived its right to complain on this issue by consenting to both trial recesses. If Plaintiff truly believes that the jury is unable to remember the evidence or the names of the parties, the only appropriate remedy is a mistrial. See United States v. Noryian No. 3:17-cr-00155-L at p. 2, 4-5 (holding that where jurors cannot recall evidence, including the names and job titles of witnesses, mistrial is the appropriate remedy). 4. Defendants will be prejudiced by interim opening statements. Any interim argument would only benefit Plaintiff at the expense of Defendants. Permitting Defendants to make equal “interim opening statements” would not cure this prejudice, as only Plaintiff’s case has been presented. “Summation of evidence and engaging in reasonable deductions from the evidence” are areas of argument and should be set aside for the time reserved for argument. Matter of Marriage of Brisco, No. 07-21-00196-CV, 2022 WL 2982512, at *4 (Tex. App.—Amarillo July 28, 2022, no pet.). Moreover, causing further delay of an additional half day of trial to permit time for unnecessary argument further prejudices Defendants, as juror frustration is likely to grow as the case continues, and Defendants are still weeks away from presenting their case in chief. All parties will have the chance to argue their case after all the evidence is introduced, the evidence is closed, and the charge is read, as prescribed by Rule 269. CONCLUSION For these reasons, the Court should deny Plaintiff’s Motion For Interim Opening Statements. 6 4879-2841-5046.4 Respectfully submitted, WEYCER KAPLAN PULASKI & ZUBER, PC By: /s/ Mark J. Levine Mark J. Levine Texas Bar No. 00791102 mlevine@wkpz.com Hamed Moradi Texas Bar No. 24121020 hmoradi@wkpz.com 24 Greenway Plaza, Ste 2050 Houston, Texas 77046 Telephone: (713) 961-9045 Facsimile: (713) 961-5341 and ATKINS, HOLLMANN, JONES, PEACOCK, LEWIS & LYON, INC. Murray A. “Trey” Crutcher, III State Bar No. 24028169 tcrutcher@odessalawfirm.com Alex Reynolds State Bar No. 24116955 areynolds@odessalawfirm.com 3800 East 42nd Street, Suite 500 Odessa, Texas 79762 Telephone: (432) 331-1600 Fax: (432) 363-1310 7 4879-2841-5046.4 ATTORNEYS FOR DEFENDANT TOBY EOFF FOLEY & LARDNER LLP By: /s/ Rachel P. Steely Rachel Powitzky Steely Texas Bar No. 00792770 rsteely@foley.com Jessica Glatzer Mason Texas Bar No. 24051001 jmason@foley.com Taylor Appling Texas Bar No. 24096284 tappling@foley.com 1000 Louisiana Street Suite 2000 Houston, Texas 77002 Telephone: (713) 276-5500 Facsimile: (713) 276-5555 ATTORNEYS FOR DEFENDANTS JUSTIN COE, RYAN HIBBETS, MICHAEL WHEELER, KALE GARRETSON, BRIAN MADISON, MICHAEL KASPAR, BRUCE WAYNE STEUBING, RYAN WHEELER, RUSSELL DAUPHIN, MICHAEL COMRIE, JACOB LEWALLEN and BO YOUNG CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing has been served on all counsel of record in compliance with the Texas Rules of Civil Procedure on this December 27, 2022. /s/ Rachel P. Steely Rachel P. Steely 8 4879-2841-5046.4 Exhibit A Appendix A IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA riminal Case JAMSHID NORYIAN (01) DEHSHID NOURIAN (02) CHRISTOPHER RYDBERG (03) MICHAEL TABA (07) MEMORANDUM OPINION AND ORDE During the status conference on November 21, 2022, Defendants Jamshid Noryian, hshid Nourian, Christopher Rydber, and Michael Taba (“Defendants”) orally moved the court to declare a mistrial in light of the delay of thirty two days or more that would result before the trial could recommence after one of the defense attorneys underwent an emergency medical procedure.In the status conference and the subsequent briefing filed by the parties on November 25, 2022 (Docs. 503, 504), the defense reurged its request for a mistrial, and Government expressed its opposition to a mistrial. For the reasons that follow, the cour grants Defendants’ oral and written request for a mistrial (Doc. 504). On October 19, 2022, a jury was impaneled in this multi defendant healthcare fraud case, and the Government began to present its evidence and witnesses the next day. The Government presented its case in chief for six days from October 20 through October 28, 2022, before the court was notified on October 31, 2022, that Defendant Noryian’s attorney had a medical emergency that required immediate attention. Defendant Noryian’s attorney requested and was granted a seven day continuance of the trial, and subsequently kept the court apprised of his Trial was not conducted on Mondays (or weekends) to allow the court to handle its criminal docket, and to allow the attorneys time to tend to other necessary legal matters associated with their law practices. Memorandum Opinion and Order Page medical condition and ability to resume his representation of Mr. Noryian in the trial of this case. More time than anticipated was needed for his recovery from his surgery, and the court had already told the attorneys and the jurors during jury selection that the trial would not be conducted during the week of Thanksgiving. As a result, the trial could not resume before November 28, 2022. ncerned about the prolonged delay, the court scheduled a status conference with the parties and their attorneys on November 21, 2022, to determine how the caseshould proceed. During the status conference, the Government proposed ways to speed up the remaining trial proceedings. To assist in refreshing the jurors’ memories, the Government also suggested that the jurors be provided with the names of witnesses who had testified to date and their job titles, as well as a review of the offenses charged The Government represented that it could finish putting on its case chief in one week. Defendants anticipated that they would need two to three weeks total to put on their respective defenses. They also expressed concern as to whether jurors would be able to recall key testimony and evidence. In addition, because jurors were told during jury selection that the trial was expected to be finished by the first week of December, Defendants were concerned that jurors would be distracted, rush their deliberations, and hold the delay against them if the trial continued up until or after breaking again for the Christmas and New Year holiday . Defendants disagreed that the Government’s suggestions could cure the likely prejudice to them if a mistrial was not granted, and they argued that disagreement over what information would be provided to refresh jurors’ memories would only further delay the trialFor these reasons, Defendants expres sed, individually under oath and through counsel, their unanimous agreement and request for the court to declare a mistrial. Memorandum Opinion and Order Page The court indicated that, before ruling on the matter, it would poll the jurors in the presence of the parties and their counsel. At the Government’s request, the court also allowed the parties to brief their respective positions of whether a mistrial was warranted. The parties’ briefs reurged and expanded slightly as to the arguments that were made during the status conference. November 29, 2022, the court conducted a hearing to poll the jurors. Because of the time lapse, the jurors who took notes indicated that they would have to rely more on their note rather than their memories and independent ability to recall the evidence presented before the day break. After considering the parties’ oral and written arguments, the jurors’ answers to various questions posed by the undersigned, the record, and applicable law, the court determines that a mistrial is warranted in this case The power of a court to order mistrial “ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.” United States v. Conlan, 786 F.3d 380, 392 (5th Cir. 2015). hen a defendant does not consent to a mi strial the [Double Jeopardy] Clause permits reprosecution only if there was manifest necessity for the mistrial.” United States v. Fisher, 624 F.3d 713, 718 (5th Cir. 2010) (emphasis added) (citing Arizona v. Washington U.S. 497, 505 (1978)). here is no double jeopardy concern, however, when a defendant consents to a mistrial Downum v. United States, 372 U.S. 734, 738 (1963). Thus, when a mistrial is declared at the request of a defendant, jeopardy continues, and retrial is generally allowed because in such circumstances the defendant consents to a disposition that contemplates reprosecution. Evans v. Michigan, 133 S. Ct. 1069, 1079 (2013). Here, Defendants, individually and through their counsel, expressly waive their double jeopardy protections in requesting and consenting to a mistrial before a verdict was reached Consequently, a finding of manifest necessity is not required for the court to order a mistrial in Memorandum Opinion and Order Page this caseSee Downum, 372 U.S. at 738; ee also Blueford v. Arkansas, 566 U.S. 599, 610 (2012) (Sotomayor, J., dissenting) (“[A] trial judge may not defeat a defendant’s entitlement to ‘the verdict of a tribunal he might believe to be favorably disposed to his fate’ by declaring a mistrial before deliberations end, absent a defendant’s consent a ‘manifest necessity’ to do so.”) (emphasis added) (quoting United States v. Jorn, 400 U.S. 470, 48 (1971), which explained that n the absence of a defendant’s consent or motion for mistrial by the defendant, the trial court is bound by and must apply “the doctrine of manifest necessity” in exercising its discretion to declare a mistrial (plurality opinion)). Based on United States v. Thomas, 627 F.3d 146 (5th Cir. 2010), the Government contends that, “[t]o warrant a mistrial, ‘the defendant bears the burden of showing specific and compelling ejudice that [would] r sult[] in an unfair trial, and such prejudice must be of a type that against which the trial court [is] unable to afford protection.’” Govt. Br. 3 (quoting Thomas, 627 F.3d at . The Government further contends that Defendants have not carried their “heavy burden.” The authority relied on by the Government does not persuade the court that the standard advocated by it applies to the issue of whether a mistrial should be granted in this case, particularly given Defendants’ request for a mistrial and unanimous consent Moreover, the quoted language from Thomas is taken out of context.Thomas involved an appeal by a defendan regarding the denial of his motion to sever motion for mistrial, which were addressed separatelyId. at 157 The language quoted by the Government pertains to the Fifth Circuit’s discussion in Thomas regarding the district court’s denial of the defendant’s motion for severanceId. at 157. Further, the court shares Defendants’ serious concern about the jurors’ ability to independently recall key testimony and evidence without relying heavily on their prior notetaking Memorandum Opinion and Order Page Given the jurors’ responses to the court’s questions in this regard, the inclusion of a jury instruction in the charge that jurors should not place too much reliance on their notes would be unavailing. Specifically, when the court polled the jury and three alternates, nine stated that they would rely more on their notes than their independent recollection or memory if they could not recall a piece of evidence or the testimony of a witness. Such position is in conflict with the court’s instruction that jurors’ notes are only an aid to their memories and cannot be substituted for their memory or independent recollection of the evidence. Common sense and reason necessarily cause a person to reasonably conclude that memories fade significantly after a 32 day gap in a trial. Additionally, while the schedules and personal conflicts of the jurors are not dispositive when considering whether to grant a mistrial, the court agrees with Defendants that some jurors, particularly those that did not wish to be on the jury in the first place because of personal and work related conflicts, would likely be distracted and inclined to rush their deliberations if the trial continued up until or after the holidays. The court, therefore, determines that Defendants would be legally prejudiced if their request for a mistrial was not granted. For all of these reasons and those discussed on the record when this issue was addressed, the court grants Defendants’ oral and written request for a mistrial (Doc. 504).The trial of this case will be reset by separate order to a later date based on the parties’ availability and the court’s current trial docket It is so orderedthis 19thday of December Sam A. Lindsay United States District Judg Memorandum Opinion and Order Page