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TRANSCRIBED FROM DIGITAL RECORDING

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ALBERTO OCHOA,

Plaintiff,

-vsJOSE LOPEZ, et al.,

Defendants.

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Case No. 20-cv-2977

Chicago, Illinois

January 27, 2023

11:33 a.m.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE YOUNG B. KIM, MAGISTRATE JUDGE

APPEARANCES:

For the Plaintiff: MS. JENNIFER A. BONJEAN

Bonjean Law Group, PLLC

750 Lexington Avenue

9th Floor

New York, NY 10022

(718) 875-1850

E-mail: Jennifer@bonjeanlaw.com

For the Individual

Defendants: MR. GRAHAM P. MILLER

Borkan & Scahill, Ltd.

20 South Clark Street

Suite 1700

Chicago, IL 60603

(312) 580-1030

E-mail: Gmiller@borkanscahill.com

**PLEASE NOTIFY OF INCORRECT SPEAKER IDENTIFICATION**

NOTE: FAILURE TO STAND NEAR THE MICROPHONE MAKES

PORTIONS UNINTELLIGIBLE AND INAUDIBLE

Transcriber:

KATHLEEN M. FENNELL, CSR, RPR, RMR, FCRR

Official Court Reporter

United States District Court

219 South Dearborn Street, Suite 1426

Chicago, Illinois 60604

Telephone: (312) 435-5569

Kathleen_Fennell@ilnd.uscourts.gov

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APPEARANCES: (Continued)

For Defendant City

Of Chicago: MR. ZAC HALDEN

Kulwin, Masciopinto & Kulwin, LLP

161 N. Clark Street

Suite 2500

Chicago, IL 60601

(312) 641-0300

E-mail: Zhalden@kmklawllp.com

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(Proceedings heard in open court:)

THE CLERK: Calling case 20 CV 2977, Ochoa versus

Lopez, et al.

THE COURT: Please approach the podium. Good

morning.

MS. BONJEAN: Good morning, your Honor. Jennifer

Bonjean, B-O-N-J-E-A-N, on behalf of the plaintiff, Mr. Ochoa.

MR. MILLER: And Graham Miller on behalf of the

defendant detectives.

MR. HALDEN: Good morning, your Honor. Zac Halden

for the City of Chicago.

THE COURT: Oh, you just filed your appearance,

right?

MR. HALDEN: Yes, your Honor.

THE COURT: Okay. Thank you.

MR. HALDEN: We did not file a pleading.

THE COURT: Got it.

So let me ask the question of Mr. Miller, and then I

will give Ms. Bonjean an opportunity to respond to detectives'

arguments.

I'm curious about this statement in the response, and

I'm quoting from page 11 of the response: "Defendants have

learned from Cook County gang intelligence personnel that

these calls contain evidence of plaintiff's gang membership."

MR. MILLER: Correct.

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THE COURT: How do they know?

MR. MILLER: I believe that they have listened to

some of the calls. They monitor the calls between, you know,

known gang members in the prison as part of their duties.

THE COURT: So did the gang intelligence personnel

contact the detectives? How did this come about?

MR. MILLER: I contacted gang intelligence personnel

investigate -- so back in the criminal case, there was -- the

prosecution had attempted to call one of these gang

intelligence personnel to testify.

So I spoke with him and through him spoke with some

of the other guys there. I was inquiring generally about

Mr. Ochoa's gang involvement in the prison, what they knew

about it, whether there were any leftover gang intelligence

files because we don't believe we got everything from Cook

County in the subpoenas, and they indicated to me that, you

know, they believe that calls with another Latin Kings gang

member, that there's been a number of them and that these

would just establish evidence of Mr. Ochoa's gang involvement

with the Latin Kings.

THE COURT: And what's your basis for making the

assertion that Mr. Raul Molina is a Latin King member?

MR. MILLER: Part of these gang intelligence

personnel, part of their job is knowing, you know, who is

affiliated with gangs in the prisons, you know, the different

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gangs who are rivals. I mean, for safety concerns, among

other things, they're taxed with knowing that information. So

that's information that they get.

THE COURT: And when you contacted the gang

intelligence personnel, I take it you didn't need a formal

subpoena to ask questions of the personnel?

MR. MILLER: I don't believe so. I think we can

conduct our own investigation and talk to, you know, whoever

may have information.

THE COURT: Because I got the sense from the last

time we were in court there was somewhat of a firewall between

departments and whatnot, and formalities have to be honored or

observed.

MR. MILLER: I mean, obviously, you know, we've

subpoenaed these records as well, but I don't think there's

any rule against us conducting our own investigation. They

don't have to talk to us, of course, I mean, but I've called

and said, hey, what do you know about this guy, and they were

willing to say, yeah, I know him. You know, we have

information about him.

THE COURT: Okay. Can you explain to me your

footnote 1? I'm not following.

So initially the subpoena went out asking for calls

between Mr. Molina and the plaintiff taking place between

December 19, 2019 to the present, right?

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MR. MILLER: Correct. That was just a mistake on my

part. December 19th, which actually happens to be my

birthday, but I think that I wasn't thinking about that; I

think I was thinking about that was the day of -- it was

either the murder or the day of his confession. Whatever it

was, that was a mistake. It should have been October 23rd,

2019, which is the date he was released.

THE COURT: So you need additional calls from

October 23, 2019 to December 19, 20 --

MR. MILLER: Correct.

THE COURT: -- 19.

MR. MILLER: Correct. For completeness, we would

like --

THE COURT: So two months.

MR. MILLER: Approximately two months, correct.

THE COURT: But you already have in your possession,

what, 20 --

MR. MILLER: So we have.

THE COURT: -- almost two-and-a-half years worth of

calls?

MR. MILLER: Correct.

THE COURT: How many calls did you actually receive?

MR. MILLER: I think it was close to 500 calls. I

don't know the exact number. We've only listened to a

small --

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THE COURT: And these calls are, at least based on

your subpoena, only calls between Molina and plaintiff?

MR. MILLER: Correct. That was what was in the

subpoena. Plaintiff's counsel has pointed out that there

apparently are other calls between Molina and other

individuals, is that -- or between plaintiff and -- I believe

other individuals apparently or other numbers.

THE COURT: Let me ask you, prior to the filing of

this motion on January 17, 2023, have you listened to any of

the calls, and have you confirmed whether plaintiff has said

anything to indicate that he was, in fact, a gang member?

MR. MILLER: So we listened to a very small

percentage of the calls. As we set forth in the motion, by

the time we realized we had the calls, it was December 13th or

12th, and we started downloading them, and then we sent them

to plaintiff's counsel. Plaintiff's counsel objected when she

received them, so we had only listened to whatever we had, you

know, a chance to go through that night.

I had maybe listened to five calls. Part of the

problems they switch back and forth from English to Spanish.

The way it appears to me is that when they kind of start

talking about business, they kind of switch into Spanish.

And, you know, I don't know. I would have to listen to them

more carefully. I can't tell you that there's -- you know,

affirmatively that I've had evidence so far.

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THE COURT: And Mr. Molina, how old is he, do you

know?

MR. MILLER: I'm not sure.

Oh, you know, it might be on the subpoena.

We may have used it as an identifier for Mr. Molina.

Sorry, your Honor, one of these exhibits is the

subpoena.

THE COURT: Should be the subpoena, right?

MR. MILLER: Yeah.

(Inaudible.)

MR. MILLER: We don't have it on the subpoena. We

just have the CB number of the -- oh, here it is, DOB,

2/15/94.

THE COURT: How old is Mr. Ochoa?

MS. BONJEAN: Mr. Ochoa is -- he is -- well, let me

do the math real quick because I don't have his birthday

memorized, but the incident happened in 2002. He was in his

early 20s in 2002, so he's significantly older.

THE COURT: Okay. Thank you.

All right. Let me give you an opportunity,

Ms. Bonjean, to respond to the detectives' opposition to the

motion.

MS. BONJEAN: Yes, Judge.

So, first of all, I want to clarify. What was

produced was not just Mr. Molina's calls. What was asked for

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were calls from Mr. Molina to Mr. Ochoa, and what was sent was

every call that's ever been made to Mr. Ochoa from Cook County

Jail, which, as you can imagine, might be quite a few because

that's where he had spent the last 17 years of his life.

So it wasn't just Mr. Molina's calls. It was other

people, other inmates, you know, friendships that he had made

with individuals because he had been in Cook County for long.

So about 25 percent of those calls, at least according to the

call log, I believe, are not Mr. Molina at all. They're just

other people.

THE COURT: Meaning other detainees from the county

jail calling out to Mr. Ochoa?

MS. BONJEAN: Yes, yes.

THE COURT: Okay.

MS. BONJEAN: So what Cook County Jail did, I think,

is just every call that was ever made to Mr. Ochoa is my

understanding.

Again, one of my primary issues is that it was my

belief that the defendants knew our objection to any sort of

blanket approach to this, and we had what I thought, at least

the spirit of an agreement in place that you will let me know

if you have some calls that you want to get at and you think

there's a reason for it.

They did not. In fact, Mr. Molina's name appears

absolutely nowhere. They have some private conversation with

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gang intelligence officers. They claim through -- again,

there are no documents. There's been no production of any

gang intelligence reports, absolutely nothing that creates a

nexus between my client and the Latin Kings.

My client has been very open and testified, yeah, I

was friends with Latin Kings. I hung out with Latin Kings. I

was in prison for 17 years. But, no, at the time of this

murder, I was not. I was in this country six, nine months at

the most. I lived in a neighborhood that was -- had many gang

members in it. When I went to prison, I certainly had friends

who were gang members.

I -- so this idea that he is a Latin King, all we

have is some third-hand evidence from a gang intelligence

person who never testified at any -- at Mr. Ochoa's trial, and

we've had no reports or any discovery on that.

So, you know, I'm just taking the defendants' word

that they believe that this will include some evidence that he

is in a gang, which I am not sure is entirely relevant even if

it was true, since it's now 2019. Whether Mr. Ochoa is

currently in a gang seems to me of far less relevance than

whether he was in a gang in 2002, which is really the crux of

this case.

It's not as if he is denying all associations in the

sense of I had no friends, I never talked to any gang members.

He's never said that. He's always admitted that since his

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time in jail.

I think that to -- I don't know whether Mr. Molina is

in a gang, but I'm going to assume that the gang intelligence

officers for the moment seem to think that he is.

Going through, you know, hundreds of calls between my

client and someone they believe is a gang member to ultimately

find out what they believe they will find out, which is that

he has some association with the gang, you know, I think our

position is that that is an intrusion that is not justified

and that they need to show more.

For example, if they showed us the gang intelligence

reports. Show me the gang intelligence reports that show some

connection, where the gang intelligence officers say, well, we

know Mr. Ochoa is in a gang because of this, this and this.

The case law has pretty much, I think, taken the

position that if we're going to allow you to sift through

phone calls, we want to see something in the evidence,

something in the discovery that already makes this nexus for

us, and then -- because until then, this is just, again, the

defense team apparently having off-the-record conversations

with some gang intelligence officers that is not backed up by

anything.

They haven't even put Mr. Molina on their Rule 26(a)

disclosures because, as Mr. Miller admitted, well, we don't

know if there's anything there. And even though he doesn't

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speak Spanish, he's just speculating that maybe they're

talking about business. I mean, you know, again, this is just

wild speculation at this point.

And so I think -- I think at a minimum, we should see

some evidence that the gang intelligence officers of the Cook

County Jail -- by the way, who were never around in 2002, to

be clear. These gang intelligence officers came on to in the

mid-2000s. I think one of them only started working as a gang

intelligence officer in 2017. So we're not talking about gang

intelligence officers who have any knowledge about my client

back during the relevant time period from our perspective.

So I think that's kind of our position at this point,

that they need to show a little more before they're allowed to

just -- before they should be permitted the opportunity to

sift through all of these phone calls.

And I do think it's problematic that the

defendants -- it's unfortunate we missed it, but the

defendants continue to issue subpoenas to third parties, such

as Cook County Jail, without making any effort whatsoever even

when they know someone's represented to make sure that their

interests are being protected or they have the right to voice

an objection, Mr. Molina being one of them, Mr. Bentazos and

Mr. Simon twice now, and then even another inmate from the

Illinois Department of Corrections.

It's just a recurring theme that invariably, it's,

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you know, maybe not going to intrude on my client's rights as

much, but I shouldn't be the person having to give notice to

all these -- the public defenders that their clients may be

negatively impacted and that they do have some privacy

interests.

So, you know, that's sort of a separate note, but it

is a recurring issue that is concerning. But I think at

bottom, they need to give us something a little more, the gang

intelligence reports at least, that, you know, back up what

these gang intelligence officers are allegedly saying that

we've never heard about, at least plaintiffs haven't heard

about.

THE COURT: Anything else?

MS. BONJEAN: No, your Honor.

THE COURT: Mr. Miller?

MR. MILLER: No, your Honor. I would just point out

that Mr. Ochoa has unequivocally denied any involvement ever

in being part of a gang. The closest he's come is saying I

may have used their handshake and called other gang members

brother, but, you know, this isn't the case where he said,

well, I wasn't in a gang back then, but maybe I joined in

prison, you know, for protection or something. He said I've

never been affiliated with the Latin Kings. So we believe

that these calls will establish that's not true.

THE COURT: Okay. Thank you.

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First of all, I do agree with the defendant

detectives that the motion itself is untimely. We shouldn't

be talking about quashing or a protective order regarding a

subpoena after the subpoena has been served and after the

respondent has actually produced documents in response to that

subpoena.

But obviously relevance and 26 -- Rule 26 parameters

are still important, and when I saw the motion, my first

reaction was the same thing, I think same reaction you had,

Ms. Bonjean, what relevance do these calls have and do you

have any factual basis to even look at these calls?

And that's why I started out the hearing with the

question as to how do these intelligence officers know; and

according to Mr. Miller's representation, they listened to

some of these audio recordings, which I guess it's their job

to listen to these recordings.

And that is sufficient for me that there is some

reasonable basis for looking into this particular universe of

information. And in terms of other calls being produced,

that's easy to be remedied, simply that defendants are to

limit their view, I should say listening of the calls to those

calls specifically initiated by Mr. Raul Molina.

But I do understand even that might be problematic

because Mr. Molina, I don't know how this phone thing works,

but Mr. Molina may have given his code or whatever to others

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to make phone calls. And if that's the case, then, you know,

I'm not going to stop the defendants from listening to those

calls because it's going to be harder at that point.

So if -- so let me ask the question: How are these

calls tracked? I mean, Cook County, my guess is that they

simply put in the cell number and just collected everything

pertaining to that particular cell number.

But what do you mean when you say Mr. Molina may have

given his number or information to others to make phone calls?

MR. MILLER: Right, you know, and I don't know that's

what happened in this case. I mean, what often happens is,

you know, inmates will use other inmates' accounts to call

out, or on the other end, they will talk to another person

through somebody else's phone number.

You know, this is a little tricky because I can't

tell whether Molina is actually on these calls without

listening to them.

THE COURT: But when you say account number, what do

you mean? I mean, I thought the receiving end has to pay for

the call.

MR. MILLER: Yeah, you can -- well, I don't know

exactly how that works. I just know that we have -- you know,

we have situations where one -- it's tracked to one inmate,

but it's, in fact, the other inmate making the call.

THE COURT: Okay. So let me go ahead and continue.

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MR. MILLER: Yeah.

THE COURT: You know, to the extent that the calls

can be identified to be Mr. Molina initiating the call, I'm

going to allow the detective defendants to listen to those

calls.

We talk about, and, Ms. Bonjean, you raise a good

point, you know, what difference does it make if those calls

tend to raise an inference that Mr. Ochoa is a member now? I

get that. But that's a battle to be fought in a motion in

limine before Judge Valderrama as to whether there is any

probative value to those calls if there are any calls. We

don't know that yet.

So that is something that needs to be addressed

before Judge Valderrama if any calls are to be identified as

evidence. The fact that Mr. Molina has not been identified,

you know, that's really not germane to this particular

analysis because defendant detectives are working off of

information received from others, not from Mr. Molina.

In terms of the privacy interests, in terms of

notifying attorneys, I get your concerns. It would be nice if

everyone was notified, but I'm not sure that there is any

obligation on the part of the County because it's their

record, right? And the subpoena is served on the County.

And so technically speaking, I'm not sure that the

County has to notify anyone. I mean, it is their business

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record, and all the callers know that these calls are not

private.

So for those reasons, the motion for a protective

order is denied. I will indicate in the order today that only

calls initiated by Mr. Molina to plaintiff can be listened to.

Again, the other thing that I would mention is that

the burden really is not on the plaintiff in terms of

listening to the calls, so the plaintiff doesn't have to do

anything at this point.

Defendants will have to do the work in terms of going

through the calls and listening to the calls and identifying

any relevant calls.

Now that you're here, let me ask you, do we have

another status hearing set in this case?

MR. MILLER: That's a good question, Judge.

We did file a joint status report back in January,

but I don't know whether --

THE COURT: Yes, we have one set for February 3rd, it

looks like.

MS. BONJEAN: Yes.

MR. MILLER: Oh, right, it's next week. Yes.

THE COURT: So let me ask these questions.

I have on my notes I have -- in my notes I have these

names, Dr. Enoch Anaglate, E-N-O-C-H, A-N-A-G-L-A-T-E. She

was supposed to have been deposed on December 13th. Kenny

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Thigpen, a 404(b) witness, to be deposed on December 21, 2022.

MS. BONJEAN: Yes, they were deposed, both of them.

THE COURT: Scheduled -- Arturo Simon was supposed to

have been deposed on January 11th, 2023. Yes?

MS. BONJEAN: Yes.

THE COURT: Daniel Ochoa to be deposed on January 13?

MS. BONJEAN: Yes, Judge. He -- he was deposed.

Actually, you raise -- this prompts my memory.

The defendants reserved one hour. We had agreed -- I

had agreed that he -- for a 12-hour deposition because of the

interpretation.

The defendants reserved an hour to question him about

the phone calls because the phone calls were only produced one

day before his deposition, so obviously that was a little

problematic, not knowing what was in the phone calls.

We agreed -- I would ask obviously that, if we're

talking about hundreds of phone calls, that the phone calls

that they believe are, particularly if they're going to be

translating some of these phone calls, that the defendants

identify for us what phone calls they think are relevant to

this litigation.

My client's not particularly concerned about any of

the phone calls, but it's -- it just seems to me that they

should at least give us a heads up if they're going to spend

hours going through -- I mean, it's literally going to be

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hours of review, so --

THE COURT: Do I have this name wrong then? I have

Daniel Ochoa.

MS. BONJEAN: It's Alberto Daniel Ochoa Piccardo.

THE COURT: Ah. So it was plaintiff who was deposed

on January 13th.

MS. BONJEAN: Correct.

THE COURT: And one hour was reserved.

MS. BONJEAN: Yes. We did 11 hours, well, in two

days.

THE COURT: And do you have the date for the second

deposition?

MS. BONJEAN: It would be the third, but, no, we

don't have a date yet because we were waiting on the Court's

ruling as it relates to this matter. That's the only subject

matter that was reserved on.

THE COURT: In terms of identifying calls to be

reviewed, I mean, it's really up to the defendants.

Oftentimes defendants -- oftentimes exhibits to be produced or

discussed at a deposition are considered work product because

the identification by the attorney is considered work product.

However, if only one hour is reserved, it's up to the

defendants how they wish to prepare for that deposition.

Obviously, things will go more smoothly and more efficiently

if Mr. Ochoa was able to listen to the calls, if any calls are

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to be questioned about, at the third session.

Bryan Holy is still scheduled to be deposed on

February 3rd?

MR. MILLER: Yes.

MS. BONJEAN: I believe that's correct, your Honor.

THE COURT: And I've got Adrienne Davis to be deposed

on February 28th.

MR. MILLER: Judge Davis, there's been a number of

reschedulings of Judge Davis, and I don't believe she's set to

proceed on that date. It's been moved a number of times.

You had the 18th, your Honor?

THE COURT: I'm sorry?

MR. MILLER: You had the 18th?

THE COURT: I have 28th down. This must be from a

joint status report.

MR. MILLER: Yeah, and I -- oh, I think we moved it

to the -- we couldn't do the 28th, and then we moved it to the

18th, and now we can't do the 18th. So there is no -- Judge

Davis has not been currently scheduled.

I am in contact with her attorney. We're just

looking for dates that are going to work with everybody.

MS. BONJEAN: I have her on the 28th, so I don't

know.

MR. MILLER: Oh, you do as going? I thought --

MS. BONJEAN: I mean --

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MR. MILLER: Well, we can --

THE COURT: Okay. Here's what I'm going to do. I'm

going to go ahead and reschedule the February 3rd since you're

already -- oh, well, let me finish giving you the opportunity.

Any issues you want to raise since you're here?

MS. BONJEAN: No, Judge. We will obviously want to

now be deposing these gang intelligence officers who were,

again, just -- their names were just identified on, I think,

January 12th, so they were not originally on the plaintiff's

list to depose, but now they will be.

But clearly we don't want to depose them until we

have all the documents that allegedly they have prepared as

part of their gang intelligence work in Cook County Jail,

which have been subpoenaed but have not been returned.

THE COURT: Let me say this much about the

intelligence officers. Unless they are going to be identified

as witnesses, I'm not going to allow their depositions because

whatever they say won't change what's on the call, right?

The calls are the calls. If the calls say nothing

about gang membership, then that's it, we end there. If the

calls can be interpreted to say that Mr. Ochoa may be in a

gang or affiliated with a gang, intelligence officers'

testimony isn't going to change what's on those calls.

MS. BONJEAN: Well, they have identified them as

witnesses, as expert witnesses, too, so --

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THE COURT: If they are, in fact, identified --

MS. BONJEAN: Yeah.

THE COURT: -- totally up to you.

Anything else? Let's see. What else you were going

to say?

MS. BONJEAN: We have one other detective that we're

working on, I think the City is working on making him

available.

THE COURT: Any issues from the defendants' side?

MR. MILLER: No. We have a -- we have three ASAs

scheduled, and then we have -- we are going to issue some

written discovery, I think, to try to obviate the depositions

of the public defenders.

THE COURT: When you say written discovery, what do

you mean?

MR. MILLER: So requests to admit to the plaintiff is

what I think we're going to do to see whether we can obviate

those depositions.

And then we have a number of 404(b) witnesses where

we have dates from plaintiff's counsel. So we're just trying

to fit those people in when we can get them served.

There's -- two of them are incarcerated, one of them is under

plaintiff's control. We have two others served, so I expect

at least to be able to get those done.

THE COURT: Can you check your schedule for -- I'm

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sorry, the City has any issues you want to raise?

MR. HALDEN: No, your Honor.

THE COURT: All right. Can you check your schedule

for March 3rd at 10:00 a.m. This will be by phone.

MR. MILLER: That will work.

MS. BONJEAN: Yes, your Honor. That works for us.

THE COURT: Okay. Well, again, the purpose of this

status hearing is to touch base and see if there are any

issues we need to work on.

Thank you.

MS. BONJEAN: Thank you.

MR. MILLER: Thank you, your Honor.

MR. HALDEN: Thank you.

(Which were all the proceedings heard.)

CERTIFICATE

I certify that the foregoing is a correct transcript from

the digital recording of proceedings in the above-entitled

matter to the best of my ability, given the limitations of

using a digital-recording system.

/s/Kathleen M. Fennell January 30, 2023

Kathleen M. Fennell Date

Official Court Reporter

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