92 14 v?§/O\ January 8, 2015 Honorable Sharon Keller Chief Justice, Court of Criminal Appeals of Tex_as HE@E§V£ED gm P.O. Box 12308 ' @©URTOF‘ n Capitol Station Cammwm “ Austin, TX 78711 MN 1_.2 2015 RE: wR-82,475-01 and Tr. ct. No. D-1-Dc-13-904021-A - sTATE 0F TEXAS v. cHARLES A. MALOUFF, JR. Ab@iACOSi&,CF@r§< Dear Judge Keller, Attached are transcripts from a October 1, 2014, Evidentiary Hearing in Federal Court where my Prosecutor, Holly Taylor, and the DA Investigator Lori Carter, testified, albeit reluctantly, that Taylor was out functioning as an investigator, taking pictures, gathering evidence and interviewing witnesses before there was any meaningful probable cause. All of this is outlined in my Writ of Habeas Corpus - see WR~82,475-01 and Tr. Ct. No. D-1-DC-13-904021-A, that Judge Karen Sage improperly dismissed. Face value, what is wrong with the picture of-my "investigator“ being my prosecutor? Taylor was less than candor with the Tribunal (see Wood Complaint in Court Records), denied me adversarial testing of a material witness, LIED again on the stand in Federal Court, and has shown that the Travis County, DA will go to whatever Unconstitu~ tional level to convict innocent people to cover up their misconduct. I have attached a copy of Steven Brand v. Travis County, specifically Rosemary Lehemburg, filed in Federal District Court as further proof of my allegations of a miscarriage of justice. Its very clear I did not get a fair trial! Its also clear as long as Payan is my attorney, I'm not getting a fair Appeal! I have to rely on Federal Court proceedings to remove the tarnished cloak of "integrity" by which the Prosecutor and shortly, Karen Sage hide behind. Just as I am extracting the truth from Taylor, Carter, and the rest of their Prosecution Team, I will soon have Sage on the stand to answer to my Bribery allegations, and her throwing my trial. As these transcripts become available I will forward them to you, Judge Rose and FBI Director Comey for the record. Respectfully, Kjv/ Charlie Malouff 10 11 12 13` 14 15 16 17 18 19 20 21 22 23 24 25 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION UNITED STATES OF AMERICA, AU:ll-CR-00647(1)-LY Plaintiff, ) ) ) ) VS. ) AUSTIN, TEXAS ) CHARLIE MALOUFF, ) ) ) Defendant. OCTOBER 1, 2014 ~k*'k~k*'k'k'k'k*'k'k'k**~k***'k*'k'k***'k'k****************** TRANSCRIPT OF EVIDENTIARY HEARING BEFORE THE HONORABLE ANDREW W. AUSTIN ~k'k*~k~k~k~k**'k~k'k'k'k'k'k'k*~k**~k~k**'k*'k~k*'k**~k*'k**~k~k*~k***‘k APPEARANCES: `FOR THE PLAINTIFF: DANIEL D. GUESS \ UNITED STATES ATTORNEY'S OFFICE ` 8612 CONGRESS AVENUE, SUITE 1000 AUSTIN, TEXAS 78701 FOR THE DEFENDANT: ‘ OSKAR IVAN NlSIMBLAT LAW OFFICE OF OSKAR NISIMBLAT, P.C. 401 CONGRESS, SUITE 1540 AUSTIN, TEXAS 78701: TRANSCRIBER: ARLINDA RODRIGUEZ, CSR 501 WEST 5TH STREET, SUITE 4152 AUSTIN, TEXAS 78701 (512) 391- 8791 Proceedings recorded by electronic sound recording, transcript produced by computer. ARLINDA L; RODRIGUEZ, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN) 10 11 12 13 14 v15 16 17 18 `19 ’20 21 22 23 24 25 EXAMINATION INDEX TOBY MILLER DIRECT BY MR. NISIMBLAT 12 CROSS BY MR. GUESS 18 LORI CARTER . DIRECT BY MR. NISIMBLAT 21 CROSS BY MR. GUESS 43 REDIRECT BY MR. NISIMBLAT 48 HOLLY TAYLOR DIRECT BY MR. NISIMBLAT 53 CROSS BY MR. GUESS 68 REDIRECT BY MR. NISIMBLAT 74 DAVID PETERSON_ DIRECT BY MR. NISIMBLAT 79 CROSS BY MR. GUESS 101 REDIRECT BY MR. NISIMBLAT 137 ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER (AUSTIN) _U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS 10 11 12 13 14 15 16 17` 18 19 20 21 22 23 24 25 CARTER - DIRECT 26 that -- that same day, that next day, it may have been a week later, it may have been a month later, I'm not really sure. Q. Are there any dates on this supplement that would refresh your memory as to when you ~- A. There is a date down at the bottom, August the 3rd of 2010. But that date is not reflective of when each supplement is written. In fact, this 8/3 of '10 may have been when we initially received the complaint from Toby Miller. Our supplements in our system is just these long, running supplements. And then I try to put a heading on it whenever you switch to a different witness and that sort of thing.' So I can't tell you when this one specifically was written. Q. Ohay. But that -- but the dates in the actual report reflect when the activity occurred? A. Yes, sir. Q. So on this one it indicates that on July 15th, you and ‘ PrOSecu£e§.~-};l§>..lil.r._I_§X,,l_.,¢_>.£_,twee§.._~s>ilt_ _..t.O _. ..i.n..Y_§,§£ is.:a_§.§_z__ is that COrr€Ct? _) MR. GUESS: I'm going to object to the relevance. I don't understand why we're going into what happened in July of 2011. MR. NISIMBbAT: Well, Your Honor, this is one of those things where I'm trying to establish this information may have been useful in a defense for Mr. Malouffiwinwthat the_ prosecutor was actually the investigator, which is -- can be ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CARTER - DIRECT 27 argued as improper. THE COURT: The state prosecutor -- MR. NISIMBLAT: Yes, sir. "-1... ._....»,` ....(._...._...--_ THE COURT: -- was investigating? _MR. NISIMBLAT= Right. As far as challenging the search warranty because the search warrant because what -- THE COURT: The federal warrant -- the warrant that led to the federal charges? MR. NISIMBLAT: COrreCt. MR; GUESS: Again, that was a state warrant. We're beyond the scope of the 2255, and we're starting to talk about these particular issues, Your Honor, And that was my concern in terms of, you know, why we needed to keep focused on the ineffective assistance of Mr. Peterson. I believe this is far afield, and I would object as to relevance. THE COURT: And as I said earlier, I'm going to give you some latitude. But n MR. NISIMBLAT: Your Honor, just in response, chart ~~ count l comes from a state warrant. THE COURT: I understand. MR. NISlMBLAT: And so Peterson -- there's no record of him ever challenging that state warrant either, we think, because he just didn‘t have -- THE COURT: When you say "challenging," are we talking about the -- the -- I mean, it was a 4 1/2 hour ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN) 10 11 _ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CARTER ~ DIRECT ~ 29 ‘MR. NISIMBLAT; Your Honor, I disagree with that characterization. I think that's attacking not the warrant itself and how it was created and whether there was misleading or misrepresenting statements in there but, rather, the execution of it and what occurred during it. THE COURT: All right. I'll overrule the objection, but just keep it moving. MR. NISIMBLAT: Yes, Your Honor. Q. (BY MR. NISIMBLAT) So -- Ms. Carter, so this supplement iHAZ.E,§§§§1,..§E§§...¢,,X_ng..,.§a§.,E,,Q..§L`LY,1 Taylor, the State pr<ésecucor, went OutthQs<:§COv/ntookpl€turestookvldeesh_§£l§__y_e£e §i§.i.,£§ml.__,l.z.,}?,?.§£:_.,i§:z§§iigatling this " -, the QQMPlaint? A, °I don't know that you could say that we were both' investigating. It's common in our office for the prosecutor to want to go out and look at, for example, a homicide scene or where maybe like a sexual assault occurred just to get a good /layout of where the crime occurred. For us we had never seen one of these -- well, I'm not sure if I had up to that point. `But, at'any rate, Holly Taylor had not seen one of these turbans up close, and she thought it would be_good, I'm assuming, for her to lay eyes on one of these turbines. Our intention was not to go out and interview anybody that day, just simply to go out and try to figure out where these turbans were. Q. And is it common for the prosecutors to go out before ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN) 10 11 12 13 14 ' 15 16 17 13 19 20 21 22 23 214 `25 CARTER - DIRECT 30 charges are filed? A. I don't know whether or not that's common~. Q. Okay. And so the date(`7/15/2011, is that before you obtained the search warrant that we talked about earlier ~~ the search warrants? »..W_..........~~ ....,.-\., w ,`.~.. _.....»,..,........_.._._._..7 _A. Yes. MR. NISIMBLAT: Okay. Your Honor, I'd like to admit what I've marked as Exhibit 2. THE COUkT: Any objection to Defendant's 2. MR. GUESS: No objections, Your Honor. THE COURT: Defendant's 2 will be admitted. Q. (BY MR. NISIMBLAT) Ms. Carter, also in front of you is what I've marked as exhibit 6- Defendant's Exhibit 3, Supplement With Search and Arrest Warrants. A. Yes, sir. Q. - Can you describe this document? A. This is another supplement it's relevant to the search and arrest on October the llth. Q. And this is actually the execution of the warrant on the s~ that we talked about earlier, correct? A. Yes. That one as well as five others. Q. Correct. And on this one, on the sixth paragraph of this exhibit, does it say that you gave Charlie Malouff his Miranda rights? A. Yes, sir. ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN) 10 11 12 `13 14 115 16 17 18 19 20 21 22 23 24 25 CARTER - REDIRECT 51 A. Yes, sirn Q. And on page 2, fourth paragraph, second sentence? A. Yes, sir. Q. It stays that "ADA Taylor exited the vehicle and took a picture of fish heads hanging from a fence post.f Is that correct? A. Yes, sir1 Q. So she was actively taking pictures during this trip? A. -She found the fish heads to be interesting. She's a city 'girl, and I guess she'd never seen that before. But it had no relevance to the investigation. Q. But it made it into the investigative notes? A. Yes, sir. Because I wanted to be able to explain why those appeared on the same set of photos. Q. And do you recall hhs faylor taking pictures of a power m§ger° ' n A- Yesslr I_ bel__lev_@_,_,:=‘»@_ Q. So she was investigating? A. We had taken out with us this ridiculous camera that our office has that's -~ I have no idea how old -~ MR- NISIMBLAT= YOuriHQnQrilQbi§§§iQ§l Nonresponsive It's a question of whether ADA Taylor took ,_,,_ _~_~. _...__.... __,.._.._.._- ~...., .,._,- ,._*__ _;…. …....._ c ___…V _______ .- _._\ g-_. _, active part in taking the p1ctures I think it's a yes or no. She might have answered it but, if we can have the answer. A.` I believe maybe she did. ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN) 10 11 12 13 14 15 16 17 18 19 20 21' 22 23 24 25 CARTER ~ REDIRECT ' 52 Q. Do you recall Ms. Holly Taylor on this day of your supplement taking pictures with whatever photographic device you had that day? A. I believe maybe she did. If I'm not mistaken, I think we may have had to use her camera because the equipment that we took out there, it wasn't conducive. Mr. Malouff and another individual, we had seen him coming down the road, and we had to take the picture quickly and didn't want to be seen with this large, ridiculous camera sticking out. Q. So Ms. Taylor took the picture? A. I believe she did maybe take one or two at the turbine that's near the wastewater treatment plant. Q. Okay. And just to -- again, this was before the judge had signed the probable cause affidavit, before chargeswwerewfiled? MR. NISIMBLAT: Pass the witness. MR. GUESS: Nothing else, Your Honor. THE COURT: Ms. Carter, you may step down. May this witness be excused? MR. GUESS: Yes, Your honor. THE COURT: Mr. Nisimblat, any further need for this. witness? MR. NISIMBLAT: I just have one last question. THE coURT= All right. MR. NISIMBLAT: Sorry, Your Honor. ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN) 10_. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TAYLOR ~ DIRECT . ` 53 Q. (BY MR. NISIMBLAT) And I apologize. Just one last question. Did you ever ask Toby Miller if he read the grant application?' fimiiiimmwlllm_ A. Yes, I did. Q. Okay. And what was his response? A. He said that he had never seen the application. Q Okay _/ MR. NISIMBLAT: No more questions. THE COURT: Anything further? MR, GUESS: No, Your Honor. THE COURT= And may this witness be excused. MR. NISIMBLAT: This witness may be excused.. THE COURT: Thank you. You may be excused, then. 'You want to call your next witness? l MR. NISIMBLAT: MS. HOlly Taylor, THE COURT: If you could raise your right hand to be sworn, please. n (Witness sworn) HOLLY TAYLOR, having been first duly sworn, testified as follows: DIRECT EXAMINATION BY MR. NISIMBLAT: Q. Would you please state your full name for the record. A. Holly Eileen Taylor. Q. And where are you employed? ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TAYLOR - DIRECT ` 56 A. So most of the investigation was done within our office. And we do have law enforcement investigators such as Sergeant Carter on our staff. Also we have financial analysts. Q. So was Sergeant Carter the investigator assigned to Mr. Malouff's case? A. Yes, Q. And what is your role as the prosecutor during the dinvestigation befere eha£ge§ are figed? A. I would say it's supervise£ngyereight. I mean, there's ,,,- some meetingsy like if witness interviews are held, the_ prosecutor is also present. Q. Do you go out and fact find? f A. Sometimes we might accompany an investigator on some fact finding, but not all the time. But just occasionally. Such as, I guess, prosecutors also will visit the scene of.a murder sometimes. So there is some -~ sometimes we will accompany them to just oversee, I guess, but not always. l Q. Okay. And in this case did you -- do you recall accompanying Lori Carter during her investigation? A. Not all the time. I did accompany her on a trip to Jonestown at one point just to view the wind turbines which were still standing at that point, and I also did sit in on witness interviews_“wabsolutely. Q' And _..C.l_i_‘._i,'1598__...5.,'.__._,¥?.¥1§...1_.§.___Y?H._,___W,.¢re With her in Jonestown looking at the wind turbines, did you assist in videoing and ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN) 10 11 12 13 14 15 l _16 17 13 19 20 21 22 23 24 25 TAYLOR - DIRECT 57 taking pictures? A. We took some pictures while we were out there, yes. Q. And when you say "we," I'm specifically talking about you. Did you take any pictures? A.' I may have taken a few pictures. I don't recall specifically. Q. Okay. And were those pictures ~~ do you know if they were used against Mr. Malouff in his trial? A. Not that I know of. Q. Okay. A. But I just don't recall. Q. Okay. Did you ever go onto CM Energy's property at any time during this investigation? A. I don't believe so, no. Q. Did you ever talk to the federal public defender about-' your role in taking a couple of pictures during your trip out to Jonestown? A. You know, I really can't -- can't remember that far back in terms of what all we discussed. Q. Okay. Have you -- have you talked to the federal public defender about this case -- A. Yeah. Q. -- about this case? A. _ Well, he came to our office, and he interviewed one of my -- at least one of my investigators. I think he interviewed ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN) 10_ 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TAYLOR - DIRECT 64 Q. Right. A. -- Agent Wilson specifically because we thought they were relevant to the federal case_ Q. I guess what I'm getting at is, did you read where Sergeant Carter read Mr. Malouff his Miranda rights, he invoked his rights, but then they came back to him and asked him for information? A. Yes. Q. Did that concern you, that she might have violated his Miranda rights? A. Well, I thought there might be an issue there_ I ` , , m, k m __`,_w‘__“__ __W_“ __,,._,,“ __~ ,_.._.__ ,_ ..._.__ _. ._._._ ,,. .,.~._. _ ._._ _______ _.. ,.. _-.. ,..._.... ,__. ..... certainly think there were -- I didn't think it amounted to integration Now we' re talking about law, so that's a _,._. _. _..` »_._.._~… __, -.._....` __… .... ...._....__.. _.-_. ..__.._. different issue. Do I think that supplement is relevant? We provided it, yes. Q. Okay. A. I certainly thought it was something they would want to look at. Q. And as a supervisor role, did you read the search warrant affidavit before it was presented t9 the magistrate° Q. And did it concern -- did you know about the c9n9erns about the complainant Teby Miller? A. What concerns? Q.' That he was a disgruntled employee; that he had been ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TAYLOR ~ DIRECT 67 A. I'm sorry. I'll let you finish. Q. Did that give you any concerns? A. That was just him laying out -- that was just her laying out his initial complaint. As you may recall, I believe these affidavits were 22 pages, single-spaced. So, I mean, she just laid out his initial complaint, and then she talked about the additional investigation and interviews that she did. Q. Yeah. I know you said it was 22 pages, but a lot of it is just kind of background and the actual charges. So -- but did anybody from the Federal Public Defender's Office discuss those concerns as far as your office's concern -- initial concern with Mr. Miller and why those weren't in the search warrant affidavit to disclose to the judge’ A. Well, I don't -- I think that was all part of the search warrant affidavit. It says in there something about his -- I can't remember how it's phrased, and I don't have the affidavit_ in front of me. But it talks about him separating from CM Energies. Q. Yeah. But what I'm saying -- A. It's in the affidavit. Q. My question was: Did you recall talking to Mr. Peterson or anybody from his office about that concern? A. About that concern? I mean, he was provided with the search warrant affidavits. I mean, I believe he was. We ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN) 10 '11 12 13 14 15 16 17 18 19 20 21 22 23 '24 25 TAYLOR - CROss 69 A. Yes. I reviewed it, yes. Q. Were there any facts in there that you knew to be false, fraudulent, or misleading in any way? A. No. Certainly not. Q. Would you have ever submitted a document that contained false, fraudulent, or misleading facts to a court of law? A. No. -Of course not. Q. If you had any concerns regarding any facts, statements, anything in a search warrant, would you review that with the agent prior to allowing her to submit it to a court of law? A. Yes. And, in fact, I actually asked our financial analyst Robin Timmons to review the affidavit herself before it was presented to the magistrate.l So in addition to me looking 9yer ii nn