Case 5:11-cv OLG-JES-XR Document 1202 Filed 08/08/14 Page 1 of 10

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1 Case 5:11-cv OLG-JES-XR Document 1202 Filed 08/08/14 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., Plaintiffs, and UNITED STATES of AMERICA, Plaintiff-Intervenor, Civil Action No. 5:11-cv-360 [Lead Case] STATE OF TEXAS, et al., Defendants. MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (MALC), Plaintiff, Civil Action No. 5:11-cv-361 [Consolidated Case] STATE OF TEXAS, et al., Defendants. TEXAS LATINO REDISTRICTING TASK FORCE, et al., Plaintiffs, Civil Action No. 5:11-cv-490 [Consolidated Case] RICK PERRY, Defendant.

2 Case 5:11-cv OLG-JES-XR Document 1202 Filed 08/08/14 Page 2 of 10 MARGARITA V. QUESADA, et al., RICK PERRY, et al., Plaintiffs, Defendants. Civil Action No. 5:11-cv-592 [Consolidated Case] JOHN T. MORRIS, Plaintiff, STATE OF TEXAS, et al., Civil Action No. 5:11-cv-615 [Consolidated Case] Defendants. EDDIE RODRIGUEZ, et al., RICK PERRY, et al., Plaintiffs, Defendants. Civil Action No. 5:11-cv-635 [Consolidated Case] UNITED STATES REPLY REGARDING THE AVAILABILITY OF REPRESENTATIVE AARON PEÑA Plaintiff-Intervenor the United States respectfully submits the following Reply Regarding the Availability of Representative Aaron Peña. In their response (ECF No. 1200), State Defendants mischaracterize the United States advisory (ECF No. 1195). The United States is not seeking to reopen the evidence in the 2011 House Trial as State Defendants contend, Defs. Resp. Regarding Avail. Representative Peña 1; see id. 2-3, 10. Instead, aware of the

3 Case 5:11-cv OLG-JES-XR Document 1202 Filed 08/08/14 Page 3 of 10 Court s preference for live testimony and because concerns were raised at closing argument about the use of Representative Peña s deposition, designations from which the United States believed to have been admitted for consideration pursuant to the United States filed deposition designations, the United States sought to determine Representative Peña s availability to testify. The advisory was to alert the Court that Representative Peña had been served a subpoena and is available at the Court s discretion and convenience. Until August 1, 2014, the United States believed Representative Peña to be unavailable as a witness because he was more than 200 miles away from San Antonio, in Hildago County, Texas. See Decl. of Esther Brinkmann 5 & Attachment 1 (Aug. 8, 2014); Fed. R. Ci P. 32(a)(4). Indeed, on June 13, 2014, the United States submitted its affirmative deposition designations relating to Texas s 2011 State House Plan (ECF No. 1093), and on July 25, 2014, excerpts of the designated deposition excerpts were filed with this Court (ECF No. 1182). These designations were limited to witnesses who were unavailable. See Fed. R. Ci P. 32(a)(4); cf. Defs. Resp. Regarding Avail. Representative Peña 4, 11. Included in these filings were designations and excerpts from Representative Peña s October 19, 2011 deposition. Exhibit A: United States Dep. Designations (ECF No ); Notice United States 2011 House Designated Dep. Excerpts (ECF No. 1182). On July 30, 2014, the United States attempted to determine the availability of Representative Peña to testify in response to a brief discussion during closing arguments between the Court and counsel for State Defendants regarding the introduction of Representative Peña s deposition testimony. 1 See Pretrial conference & Closing Args. Tr. 102:23-104:10. United 1 Representative Peña is one of the twenty-three individuals represented by State Defendants. While the State Defendants produced documents in response to our Motion to Compel on his 2

4 Case 5:11-cv OLG-JES-XR Document 1202 Filed 08/08/14 Page 4 of 10 States Marshals attempted service of the subpoena at three addresses believed to be Representative Peña s home or business in Hidalgo County, which are respectively located 229, 237, and 229 miles away from this Court. See Brinkmann Decl. 5 & Attachment 1. It was not until August 1, 2014, when the United States Marshal executing the subpoena made contact with Representative Peña s father, that the United States first learned that Mr. Peña now works for the State of Texas in Austin. 2 Id. 7 & Attachment 3. The United States does not believe that [all of] Representative Peña s designated deposition testimony [was] admitted into evidence based on a question posed to Ryan Downton. See Defs. Resp. Regarding Avail. Representative Peña 5. Prior to closing arguments, the United States believed that the portions of Representative Peña s testimony used during the cross-examination of Mr. Downton were properly admitted over the objection of State Defendants. United States Advisory Regarding Avail. Representative Peña 1. The use of Representative Peña s deposition testimony during the cross-examination of Mr. Downton was pursuant to a relevant line of questioning by the United States. That State Defendants characterize it as impeachment, both in trial and in State Defendants Response to United States Advisory Regarding the Availability of Representative Aaron Peña, does not make it so. See Tr. Testimony 2063: :3; Defs. Resp. Regarding Avail. Representative Peña 6-7. Further, the United States believed that the remaining deposition designations and corresponding excerpts (ECF Nos & 1182), including Representative Peña s designated behalf, the State Defendants refused to accept service of a trial subpoena on his behalf. 2 Upon obtaining information regarding Representative Peña s work in Austin, the United States conducted additional research and subsequently re-executed Representative Peña s subpoena. Brinkmann Decl. 7-8 & Attachment 4. The United States filed its advisory on August 4, 2014, hours after the United States Marshals confirmed service of Representative Peña s subpoena in Austin, Texas. See id. & Attachment 5; United States Advisory Regarding Avail. Representative Peña. 3

5 Case 5:11-cv OLG-JES-XR Document 1202 Filed 08/08/14 Page 5 of 10 testimony that he did not give Ryan Downton instructions on how to split more than a couple of precincts, were admitted for the Court s consideration because State Defendants objection to the United States designations was limited to the absence of a showing of witness unavailability[,] Notice Defs. Dep. Counter-Designations 2-3 (ECF No. 1113), and Representative Peña was unavailable, see Brinkmann Decl. 5; Fed. R. Ci P. 32(a)(4). State Defendants also misconstrue the application of Rule 32(a)(8) of the Federal Rules of Civil Procedure. A deposition taken in an earlier action may be used in a later action involving the same subject matter and parties to the same extent as if taken in the later action, or as otherwise allowed by the Federal Rules of Evidence. Fed. R. Ci P. 32(a)(8). A ruling pursuant to Rule 32(a)(8) is not a determination of admissibility in terms of whether the testimony is hearsay, relevant, or more probative than prejudicial. S.W. City of New York, No. CV , 2010 WL , at *1 (E.D. N.Y. No 18, 2010). In cases where a party objects to such testimony, see Defs. Resp. Regarding Avail. Representative Peña 8 (ECF No. 1200), and the declarant is unavailable, see Brinkmann Decl. 5, Rule 32(a)(8) and [Federal Rule of Evidence] 804(b)(1) should be construed together to resolve the question of a deposition s admissibility. Nationwide Mut. Fire Ins. Co. Kaloust Fin., LLC, No. 8:12-cv- 235, 2013 WL (M.D. Fla. Apr. 9, 2013) (quoting Wallace City of Tarpon Springs, No. 8:05-cv-979, 2007 WL , at *2 (M.D. Fla. Jan. 12, 2007)). While testimony from a prior proceeding is generally inadmissible hearsay, Fed. R. Evid. 801 & 802, Rule 804(b)(1) of the Federal Rules of Evidence provides that when a declarant is unavailable as a witness, former testimony of that declarant is not excluded under the hearsay rule when the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. The declarant is unavailable if, among other reasons, he or 4

6 Case 5:11-cv OLG-JES-XR Document 1202 Filed 08/08/14 Page 6 of 10 she is more than 100 miles from the place of hearing or trial, Fed. R. Ci P. 32(a)(4), and prior to and during the trial relating to the 2011 House Plan, the United States understood Representative Peña to be unavailable as a witness because he was more than 200 miles from this Court in San Antonio, see Brinkmann Decl. 5 & Attachment 1. Thus, the United States understanding that this Court properly admitted the designated portions of Representative Peña s deposition into evidence under Rule 32(a)(8) of the Federal Rules of Civil Procedure is not unfounded. Cf. Defs. Resp. Regarding Avail. Representative Peña 8. However, if the Court has concerns about the admissibility of Representative Peña s designated deposition testimony under Rule 32(a)(8), the United States respectfully requests the opportunity to present Representative Peña as a witness on Monday, August 11, Date: August 8, 2014 ROBERT L. PITMAN United States Attorney Western District of Texas Respectfully submitted, MOLLY J. MORAN Acting Assistant Attorney General Civil Rights Division /s/ Erin M. Velandy T. CHRISTIAN HERREN, JR. TIMOTHY F. MELLETT BRYAN L. SELLS JAYE ALLISON SITTON DANIEL J. FREEMAN MICHELLE A. MCLEOD ERIN M. VELANDY Attorneys, Voting Section Civil Rights Division U.S. Department of Justice NWB Room Pennsylvania Avenue, N.W. Washington, D.C Telephone: (202) Facsimile: (202) Erin.M.Velandy@usdoj.gov 5

7 Case 5:11-cv OLG-JES-XR Document 1202 Filed 08/08/14 Page 7 of 10 CERTIFICATE OF SERVICE I hereby certify that on August 8, 2014, I served a true and correct copy of the foregoing via the Court s ECF system on the following counsel of record: David R. Richards Richards Rodriguez & Skeith, LLP davidr@rrsfirm.com Richard E. Grey III Gray & Becker, P.C. rick.gray@graybecker.com Counsel for Perez Plaintiffs and Plaintiff-Intervenors Pete Gallego and Filemon Vela Jr. Luis Roberto Vera, Jr. Law Offices of Luis Roberto Vera, Jr. & Associates lrvlaw@sbcglobal.net George Joseph Korbel Texas Rio Grande Legal Aid, Inc. gkorbel@trla.org Counsel for Plaintiff League of United Latin American Citizens John T. Morris johnmorris1939@hotmail.com Pro Se Plaintiff Nina Perales Marisa Bono Nicolas Espiritu Mexican American Legal Defense and Education Fund nperales@maldef.org mbono@maldef.org nespiritu@maldef.org Mark Anthony Sanchez Robert W. Wilson Gale, Wilson & Sanchez, PLLC masanchez@gws-law.com rwwilson@gws-law.com Counsel for Plaintiff Latino Redistricting Task Force Jose Garza Law Office of Jose Garza garzpalm@aol.com Mark W. Kiehne Ricardo G. Cedillo Davis, Cedillo & Mendoza mkiehne@lawdcm.com rcedillo@lawdcm.com Joaquin G. Avila Seattle University School of Law avilaj@seattleu.edu Cynthia B. Jones Jones Legal Group, LLC jones.cynthiab@gmail.com Counsel for Plaintiff Mexican American Legislative Caucus

8 Case 5:11-cv OLG-JES-XR Document 1202 Filed 08/08/14 Page 8 of 10 Karen M. Kennard City of Austin Law Department karen.kennard@ci.austin.tx.us Max Renea Hicks Law Office of Max Renea Hicks rhicks@renea-hicks.com Manuel Escobar, Jr. Manuel G. Escobar Law Office escobarm1@aol.com Marc Erik Elias Abha Khanna Perkins Coie LLP akhanna@perkinscoie.com melias@perkinscoie.com S. Abraham Kuczaj, III Stephen E. McConnico Sam Johnson Scott Douglass & McConnico, LLP akuczaj@scottdoug.com smcconnico@scottdoug.com sjohnson@scottdoug.com David Escamilla Travis County Ass t Attorney david.escamilla@co.travis.tx.us Counsel for Rodriguez Plaintiffs Gerald Harris Goldstein Donald H. Flanary, III Goldstein, Goldstein and Hilley ggandh@aol.com donflanary@hotmail.com Paul M. Smith Michael B. DeSanctis Jessica Ring Amunson Jenner & Block LLP psmith@jenner.com mdesanctis@jenner.com jamunson@jenner.com J. Gerald Hebert Law Office of Joseph Gerald Hebert hebert@voterlaw.com Jesse Gaines Law Office of Jesse Gaines gainesjesse@ymail.com Counsel for Quesada Plaintiff-Intervenors Rolando L. Rios Law Offices of Rolando L. Rios rrios@rolandorioslaw.com Counsel for Plaintiff-Intervenor Henry Cuellar

9 Case 5:11-cv OLG-JES-XR Document 1202 Filed 08/08/14 Page 9 of 10 Gary L. Bledsoe Law Office of Gary L. Bledsoe garybledsoe@sbcglobal.net Victor L. Goode NAACP vgoode@naacpnet.org Robert Notzon Law Office of Robert Notzon robert@notzonlaw.com Anita Sue Earls Allison Jean Riggs Southern Coalition for Social Justice allison@southerncoalition.org anita@southerncoalition.org Counsel for Plaintiff-Intervenor Texas State Conference of NAACP Braches Chad W. Dunn K. Scott Brazil Brazil & Dunn chad@brazilanddunn.com scott@brazilanddunn.com Hector De Leon Benjamin S. De Leon De Leon & Washburn, P.C. hdeleon@dwlawtx.com bdeleon@dwlawtx.com Eric Christopher Opiela Eric Opiela PLLC eopiela@ericopiela.com Christopher K. Gober Michael Hilgers Gober Hilgers PLLC cgober@goberhilgers.com mhilgers@goberhilgers.com James Edwin Trainor, III Beirne, Maynard & Parsons, LLP ttrainor@bmpllp.com Joseph M. Nixon Beirne Maynard & Parsons LLP jnixon@bmpllp.com Counsel for Plaintiff-Intervenors Joe Barton et al. Counsel for Plaintiff-Intervenor Texas Democratic Party John K. Tanner John Tanner Law Office 3743 Military Rd. NW Washington, DC Counsel for Plaintiff-Intervenor Texas Legislative Black Caucus

10 Case 5:11-cv OLG-JES-XR Document 1202 Filed 08/08/14 Page 10 of 10 David Mattax Patrick K. Sweeten Angela V. Colmenero Matthew Frederick Ana M. Jordan Jennifer Settle Jackson Adam Bitter William T. Deane Summer R. Lee Michael B. Neill Office of the Texas Attorney General texasattorneygeneral.gov texasattorneygeneral.gov Counsel for Defendants State of Texas and Rick Perry and Defendant-Intervenors David Dewhurst, Joe Strauss, and John Steen Donna Garcia Davidson Donna G. Daviddson Law Firm Frank M. Reilly Potts & Reilly, LLP Counsel for Defendant-Intervenors Steve Munisteri Kent M. Adams Lewis, Brisbois, Bisgaard, & Smith LLP Counsel to Defendant-Intervenor Sarah M. Davis Clarkson F. Brown Bexar County District Attorney s Office, 101 W Nueva, Suite 5049 San Antonio, TX (210) clarkb@bexar.org Counsel for Amicus Curiae Bexar County Ned Bennet Sandlin Texas Municipal League bennett@tml.org Counsel for Amicus Curiae Texas Municipal League Manuel A. Pelaez-Prada Pelaez Prada, PLLC mpp@lonestaradr.com Counsel for Amicus Curiae San Antonio Hispanic Chamber of Commerce /s/ Erin M. Velandy ERIN M. VELANDY Attorney, Voting Section Civil Rights Division U.S. Department of Justice NWB Room Pennsylvania Avenue, N.W. Washington, D.C Erin.M.Velandy@usdoj.gov