Prenda Law And The Terrible, Horrible, No Good, Very Bad Appellate Argument

It's time for an update on the exploits of Prenda Law, that team of crooked, bumbling copyright trolls that's been stomped by judges nationwide.

Today, the United States Court of Appeals for the Ninth Circuit heard oral argument in a Prenda case. Prenda's principals have appealed Judge Wright's catastrophic May 2013 sanctions order against them. It was worth the long wait for court-watchers — though probably not for Prenda.

Judge Wright faced complex problems: given that Prenda had dismissed its copyright-trolling case, what sort of sanctions power did he retain, and what sort of due process did he have to extend to the Prendarasts to invoke that power? On appeal, Team Prenda argues that Judge Wright's sanctions and attorney fees award exceeded his power because (1) Team Prenda's inviduals — like John Steele and Paul Hansmeier — were not properly before the court, and (2) Judge Wright effectively levied criminal sanctions, triggering procedural rights that he did not extend to Team Prenda. John Doe — the defendant who triggered this whole escapade, successfully represented by Morgan Pietz — argued that the bizarre and extreme facts supported all of Judge Wright's order under applicable law.

It's foolish to bet on specific outcomes based on oral argument. But that's the kind of fool I am. I predict that the Ninth Circuit will uphold part of Judge Wright's sanctions order — the part that represents a civil sanction — and send the case back to the trial court for a more complete hearing on criminal sanctions.

That's not good for Prenda.

Prenda's attorney Daniel Voelker did what an attorney is supposed to do: he stood up and argued, defiant of the odds. But defiance isn't enough. He needed to address the problems with his case directly, and he didn't.

The beginning was not auspicious — Judge Tallman immediately quizzed him on why mail sent to his clients always bounced back, a long-time issue as Team Prenda evaded service of process. Voelker said he didn't know, a statement that would become a common refrain for him. His approach, rather reasonably, was to avoid discussions of the facts of Prenda's misconduct and attempt to focus the court on procedural issues. But Judges Pregerson, Tallman, and Nguyen weren't having any of it. They wanted him to talk about facts — to explain why he believed Judge Wright didn't have sufficient evidence to decide that Steele and Hansmeier and Duffy ran Prenda and were therefore subject to sanction. Voelker chose to evade these questions.

Evading a judge's questions doesn't work. Here it just antagonized the judges, who started drilling down deeper into the astounding record below. "You keep wanting to skip to the end," said Judge Tallman. "I'm trying to ask about facts." On another occasion Judge Tallman said "you're not helping yourself by bobbing and weaving." All three judges displayed an unusually detailed grasp of the facts of this voluminous case, and peppered Voelker with inquiries he evaded or couldn't answer. Judge Pregerson — who began the day by announcing it was the 70th anniversary of his battle wound on Okinawa — was relentless. "Explain to me how this operation works. This operation. From the beginning. How they made their money," he demanded. When Voelker demurred Pregerson snapped "you don't know anything, do you?" Voelker weaved, and argued that his clients' invocation of their Fifth Amendment rights was wrongfully held against them. "They should have asserted the Fifth Amendment because they were engaged in extortion," Pregerson shot back.

Voelker didn't give up. He explained he wanted the court to send the case back to the trial court and, if not dismiss it, give his clients the full criminal contempt hearing they were entitled to. The judges were openly incredulous of this strategy. "You want us to send this back for criminal contempt proceedings?" asked Judge Tallman, with the air of a parent asking a toddler whether he really wants to hurl himself down the stairs. "Do you understand that the maximum penalty for contempt is life imprisonment?" I lost a little urine at this point. "I'm amazed that you're asking for this to be sent back for a criminal proceeding given the findings here and across the country," said Judge Nguyen. But Voelker was undaunted — yes, he said, that's what his clients want.

I hesitate to armchair-quarterback a lawyer in a tough position. But Voelker's damn-the-facts approach didn't work. It did whatever the opposite of working is. When Judge Tallman asked Voelker about the forged Cooper document, and Voelker was vague and equivocal, Judge Tallman was angry. "Oh come on!" he said, and later: "Was this document delivered by the tooth fairy?" Judge Pregerson was blunter. He called Prenda "sordid" and a "crooked extortion operation," and said that it "used our court system for illegal purposes, to extort money." He wasn't any kinder to Voelker individually. "This is going to be written about for years and years, and you're going to be part of the story." Pregerson demanded whether Voelker would be "involved" in any criminal proceeding. "Not necessarily Your Honor," said Voelker, which is not the way I would have gone with that. Pregerson followed with perhaps the most devastating line I've ever heard used against a lawyer:

Pregerson: And you're a great lawyer.
Voelker: I appreciate you saying that, Your Honor.
Pregerson: I mean, it says so, right there on your web site.

A battered but unbowed Voelker took his seat, and Morgan Pietz arose to defend Judge Wright's sanction order. The judges were far more cordial and their tone was cooperative, as if they were trying to work with Pietz to find a way to uphold the sanctions order. They did have some tough questions for him on the distinction between criminal and civil sanctions. Pietz shrewdly agreed that it would be fine for the court to uphold the civil component of the sanctions and remand to the trial court for a full criminal contempt proceeding.

Voelker rose again for rebuttal. He dealt with the hostility more effectively this time: when Judge Pregerson suggested that Judge Wright "smelled a rat," Voelker correctly pointed out that we don't sanction people based on smell, but on evidence offered through a correct procedure. But then he lapsed into his habit of vagueness and fact-evading. When he complained that Judge Wright had denied his clients the opportunity to present evidence, Judge Tallman asked him what evidence they would have presented, and how it could have made a difference. He had no answer.

"We hear your position," Judge Tallman said in question, signalling that they didn't agree with it.

I have never seen an oral argument go so badly for an advocate. The judges were immersed in the details of the record and plainly convinced that Prenda was a criminal operation that merited some sort of sanction. They clearly viewed the case not in isolation, but as part of a series of cases involving Prenda across the country — most of which are turning out very badly for Prenda. It seemed clear that they believed that Judge Wright had the power to impose some sort of sanctions, and that the record supported his doing so.

However, they seemed somewhat skeptical about the extent of Judge Wright's sanctions, given the way he conducted the sanctions hearings. My best guess is that the court will write a blistering opinion laying out Prenda's misconduct, affirm a significant portion of the sanctions, and then send the case back for a full criminal contempt hearing. It's hard to imagine how that helps Prenda. Nobody who has heard Steele or Hansmeier or Duffy testify has ever believed them — to the contrary, judges had specifically disbelieved them. They've never been able to offer a credible explanation for their conduct. They've dodged answering many questions that will now be inescapable. Their prospects in a criminal contempt proceeding are very poor — and would come in the wake of an appellate opinion further crushing their reputations.

Frankly, Prenda's core argument — that Judge Wright imposed criminal contempt penalties without extending criminal contempt procedural protections — is not a bad one. It's wouldn't be an injustice for Prenda to prevail on that, particularly if it hurled them from the frying pan of the Ninth Circuit back into the furious cleansing fire of a criminal contempt proceeding. Such a proceeding would make it substantially more likely that members of Team Prenda will go to prison — either as a criminal contempt sanction, or because the criminal contempt proceeding produces evidence that makes it easier to prosecute them separately.

Patrick and I livetweeted the argument; you can find the tweets in a Storified version here.

Last 5 posts by Ken White


  1. Dave Crisp says

    I think this is an appropriate place to but the quote about the wheels of justice grinding slowly but exceedingly fine.

  2. Peter H says

    For those of us in the cheap seats, can you (or someone else knowledgeable) talk about what a criminal contempt proceeding means specifically, procedure and punishment wise?

    1. Would it go back to Judge Wright, or to a different judge in the district court?

    2. Would it be an inquest by the court (a la Wright's hearing in the first sanctions proceeding) or would there be an AUSA arguing for sanctions? If so, could the US Attorney's office decline to prosecute?

    3. What are we realistically talking punishment-wise? I know the judge said life in prison, but I don't think that's seriously on the table. What is?

  3. Ted H. says

    Did Voelker have anything to do with Prenda other than representing them in this action? If not, that comment about the website seems over the line.

  4. says

    Voelker had his talking points, but he lacked organization. He also had to deal with the record that was given to him. The judges correctly nailed Team Prenda for Attorney Rosling, faced with a trial judge who seems to have prevented the introduction of evidence, failed to make a proffer of the evidence that she was not permitted to introduce. Of course, it may be that she tried to get a proffer, so then the heat is off of her.

    I think he fails on the argument that the adverse civil inferences were improper because the 5th was claimed in a criminal context: even if the judge hadn't mentioned prison, they still would have claimed the 5th, knowing their testimony could land them in hot water.

    Voelker missed arguing that the Cooper signature was immaterial–he tried, but couldn't articulate the point that, assuming forgery, the forgery was immaterial and therefore could not have legally constituted a fraud on the court.

    Pietz did well; he wanted to preserve the large award to him, so he had to argue the point. He will probably find himself on the losing end of the lodestar analogy as the matter is remanded. Of course, if Judge Wright tries it under criminal procedures and appoints an independent prosecutor….then I hope they all enjoy living in Nevis.

  5. Ryan says

    I have no familiarity with the workings of a courtroom, so believe me when I say that, even to a layman, it was profoundly self-evident Voelker was being torn down like a crooked old shack. It's fitting that Ken references Indiana Jones, because during his rebuttal I kept expecting that poor man to melt like Judge Tallman had opened the Ark of the Covenant at him.

  6. says

    Ted H.: Voelker is a longtime Duffy's friend. He equally "brilliantly" argued in the Seventh circuit when Prenarasts appealed Judge Murphy's contempt ruling.

    Recently an interesting transcript (unrelated to Prenda) that sheds some light on Voelker-Duffy relationship. I have some more documents, but I'm not well organized to find them quickly.

  7. @SouthJerseyBlu says

    My favorite part: ""Do you understand that the maximum penalty for contempt is life imprisonment?" I lost a little urine at this point."

  8. Edward Gemmer says

    I know nothing about contempt actions in federal court. If it was remanded for that reason – could they request a jury trial and whatnot. I guess they are hoping no one would want to go through with that.

  9. jimmythefly says

    Seems like they(Prenda) only care about extending and/or delaying any and all procedures, damn the consequences. I can only guess that they are trying to buy themselves time or an excuse that they can give to some 3rd party they owe money to -maybe something to do with one of the bonds?

  10. KyzerSoze says

    Watching this was the highlight of my day. How much more Prenda enjoyment can there be? I'll contemplate it as I head out to fire up the grill and drink beers. Keeping my fingers crossed for criminal proceedings.

  11. WDS says

    Do any of the people who do not have to write IANAL know if Prenda can still withdraw the appeal until the ruling come out, or are they now stuck?

  12. ppnl says

    Ok I give up. Why can't I keep a working link to this site in my favorites? It keeps going dead with no new posts showing.

    Sorry for the off topic.

  13. Jim Tyre says


    The Court of Appeals has discretion whether to allow a dismissal at this stage.


  14. Jim Tyre says

    Jay Wolman,

    If memory serves, Rosing walked out of the hearing before it was done, though she did file papers later. (I was at that hearing, but I do not claim Total Recall.) In any event, even if she could specially appear, as she purported to do, her appearance was only on behalf of Duffy, a paralegal who wasn't sanctioned (Van Den Hemel) and Prenda Law. She did not purport to represent Steele, either Hansmeier, Lutz.

  15. Raul says

    if there is a haircut on the punitive award isn't that going to be more than offset by the cost of defending a criminal contempt proceeding? Seems, like their other endeavors, Prenda did not think this one through.

  16. ... says

    Ken, there are solutions for urinary incontinence, you should see a professional for that.

  17. says

    Recently an interesting transcript (unrelated to Prenda) that sheds some light on Voelker-Duffy relationship.

    I thought Mrs Tolero made an impressive pro se appearence.

  18. Steve Simmons says

    Taking together these lines from the live tweets:

    Prenda's lawyer says he wasn't involved.

    Judge Pregerson: Who's paying you? Long pause

    When appellate judge says "why is mail to your clients bouncing," it's not a good sign.

    Judge Tallman: Do you understand that the maximum imprisonment for contempt is life imprisonment?

    I come away with the impression that the Prendarasts hired Volker, then at some point stopped paying him and stopped responding to him – ie, they basically threw Volker to the wolves.

    If so, Volker's courtroom strategy makes sense: your clients threw you to the wolves, so return the favor by arguing in a manner that pretty much makes the situation worse for the client. Who's gonna be dumb enough to represent them when they have to go back before Wright? And how much worse are the criminal contempt charges going to be than what they were facing before?

    OK, OK, so it's a pipe dream on my part. But it's a very pleasant one.

  19. says

    @jim tyre, thank you for the lineup clarification. Looks like there's plenty of blame to go around on that front. I thought it at the time that they should have made a proffer. Guess that's why I'm not facing six figure sanctions.

  20. That Anonymous Coward says

    And here I was thinking perhaps they were just trying to prove Judge Wright wrong, that he'd made the sanction just less than what an appeal would cost. They like to prove people wrong… pity they can't figure out how to do it.

  21. Resolute says

    I hope it gets remanded back to Wright for a criminal contempt charge.

    Wright asks question, Prendarists plead the fifth and try to dodge every question ever. Wright finds them in contempt, and they appeal back to the 9th circuit claiming they weren't allowed to give evidence again. Round and round we go.

  22. Felix says

    @ppnl: I have found that popehat does not refresh properly in Firefox, that Firefox behaves as if some internal cache has the latest version. I attribute it to some HTTP header sent out by popehat's server.

    With Firefox, I always use SHIFT reload, which forces a full reload instead of relying on its cache.

  23. Felix says

    @ppnl: This comment was a perfect example. Clicking POST COMMENT reloaded the page exactly as it was when I started typing; I had to SHIFT RELOAD to see my new comment.

  24. L says

    If so, Volker's courtroom strategy makes sense: your clients threw you to the wolves, so return the favor by arguing in a manner that pretty much makes the situation worse for the client. Who's gonna be dumb enough to represent them when they have to go back before Wright? And how much worse are the criminal contempt charges going to be than what they were facing before?

    OK, OK, so it's a pipe dream on my part. But it's a very pleasant one.

    This reminds me of David Aylor's shenanigans, in the sense that, while I don't really feel a whole lot of sympathy for the scumbag client who is harmed by the deeply unethical behavior, I still cringe at the thought of a lawyer being that grossly unethical. I hope your theory is wrong, and although I sort-of agree that it's "pleasant" in the sense of wanting to see bad things happen to bad people, ultimately I don't find it pleasant to think about at all.

  25. says

    Not a bad writeup, Ken. Quick point though, you messed up the smackdown on Voelker. He actually said:

    Pregerson: And you’re a great lawyer too.
    Voelker: I really appreciate that.
    Pregerson: That’s what your ad says, when you go on the internet, right? [Tallman chuckles] I wonder how many super lawyers there are in this country.

    I'll also be playing Pregerson's description of the bittorrent litigation scheme (yes ,I clipped it out, not easy when I'm stuck on a liveCD based computer) next time I give a talk/discussion on the topic.

  26. rsteinmetz70112 says

    If you look at the hearing transcript the Prendas asked to be heard. The judge asked if they had evidence. They said they had argument. The frustrated Judge shut them down and told them to put it in writing. They could have said they wanted to call Lutz, but didn't. Volker pretty much lied about the record. The hearing was basically an evidentary hearing to get all of the Prendas in one room because they had been blaming whoever wasn't there.

    I may be wrong about this but I never understood the Judge to threaten jail as a sanction, more as coercion to get them to stop dancing around and give straight answers to his questions.

  27. Larry West says

    Is it appropriate to speculate here on how many of them flee the country with their ill-gotten gains before the next court date?

  28. nk says

    I think even with the Scalia Court, contempt punishable by more than six months in jail requires the full panoply of criminal procedure safeguards including indictment by grand jury and trial by jury.

    What's interesting is the double jeopardy issue. It has been held that if the trial court has imposed summary contempt sanctions, it would be double jeopardy to "retry" the defendants for the identical conduct — whether it is for criminal contempt or another crime which contains the same elements. Are the Prendas waiving double jeopardy by requesting to have the case remanded for criminal contempt proceedings, opening themselves up to much harsher penalties than could be imposed summarily as J. Tallman pointed out? But if Mr. Voelker's website says he's a great lawyer, I guess he knows what he's doing.

  29. Some Idiot says

    As a recent legal eagle acquaintance of mine so succinctly put it:

    "Ignoring a federal judge is like ignoring a drunk hippo – It may move extremely slowly, but it will have your undivided attention once it arrives."

  30. nk says

    But let's cut the poor guy a little slack. He does not call himself a Super Lawyer; a lawyers' ad-paper does:

    "… Super Lawyers, which is a service of the Thomson Reuters Legal division, undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff and a peer review of candidates by practice area. Super Lawyers magazine names attorneys in each state who received the highest point totals, as chosen by their peers and through the independent research. Rising Stars names the state's top up-and-coming attorneys.
    The list of Super Lawyers is published in the Thomson Reuters Legal Super Lawyers magazine."

  31. says

    Re: what @Felix said above about technical issues with the site:

    To whoever is in charge of this site technically: is issuing a "Last-Modified" header with a date of 01 Jan 1970 for all requests. This can happen on WordPress sites when some plugin blanks out the Last-Modified header instead of removing it; you can find multiple issues on the WordPress issue tracker and on the issue trackers of various plugins that mention this issue.

  32. TXDave says

    I've been eagerly awaiting the next chapter in the Prenda Saga. I was not disappointed.

    Laughed so hard I started tearing up.

  33. anne mouse says

    Pietz' appellate brief is a great read. As usual, Pietz lays out his case clearly, concisely, and vividly, with just the right hint of snark (still showing respect for the court).

    How often do you see a chapter heading like this?

    (a) The Award of Full Attorney’s Fees And Costs To John Doe Should Be
    Affirmed Because Compensatory Sanctions Are Properly Issued Under The
    Court’s Inherent Authority And Prenda Richly Deserves It.

    (emphasis added)

  34. anne mouse says

    What I'm waiting to see is, will the appeals court entertain (or sua sponte suggest) a sanctions motion for Voelker's frivolous arguments (e.g. "the record is void of evidence"), or do they just want this case to go away?
    Note to appeals court justices: leadership is by example.

  35. amber says

    The point of legal representation, is so that one doesn't go to court.

    Under what scenario is "face criminal contempt of court charges" as a legal strategy/defense, a good idea?

  36. Another guy named Dan says

    This reads like Ted Buckland (from Scrubs) appealing a case lost by Lionel Hutz ("Win your case or the pizza is free" from The Simpsons)

  37. jackn says

    Does this appeal continue today? I imagined that I heard it would continue again in the morning.

  38. Jim Tyre says


    That confused a few folks. The hearing ended yesterday, then the court adjourned until today, when it will conduct other business.

  39. mcinsand says

    Felix and ppnl,

    Firefox isn't the only browser that seems to go to a cached page. Chrome is doing the same thing on this PC.

  40. Jim Tyre says


    No one can say for sure. But typically, the Ninth Circuit moves very slowly. 6 months would be optimistic.

  41. Todd Knarr says


    In a scenario where your only option is to plead the 5th, which is where Prenda was at that hearing. They don't want the judge to infer that that means at best they have no evidence and at worst their evidence supports the other side. Hence why they constantly harp on the possible criminal consequences of the judge's ruling, they want by hook or by crook to get things switched to a set of rules where their refusal to testify can't be held against them. Personally I think they're making a big mistake, but that's consistent with the rest of their track record in this case.

  42. Matt says

    I predict that the Ninth Circuit will uphold part of Judge Wright's sanctions order — the part that represents a civil sanction — and send the case back to the trial court for a more complete hearing on criminal sanctions.

    As I'm trying to remember clearly – which part of Judge Wright's sanctions would be the "criminal" part? The referrals to the IRS and the US attorneys? The bar complaints? Can someone break that down for me?

    "I'm amazed that you're asking for this to be sent back for a criminal proceeding given the findings here and across the country," said Judge Nguyen. But Voelker was undaunted — yes, he said, that's what his clients want.

    Because his clients *still* seem to think they can bluff and guile their way out of this, if only someone will just listen to the poor misunderstood John Steele…

  43. jr says

    they want by hook or by crook to get things switched to a set of rules where their refusal to testify can't be held against them.

    And that made sense back then, when the full details about Prenda hadn't come out yet. Also if someone in that case tried to bring up bad deeds in another case, they might have trouble getting the court to let that into the record.

    Now we know so much more. We have the finance reports that Gibbs turned over. We have the whole deal in IL with clerk/process server/drug dealer and the dead judge.

    If this goes to a criminal case, the gov is going to hit them with much more than criminal contempt. Pull out the stops, use everything in every case they every worked on. Drag Mr. Saltmash and Steele's sister in to testify. Extortion, Money laundering, fraud, forgery, list could go on for a bit.

    When one of them wants to imply that they would never extort someone, then pull out the case were Hans tried to extort another lawyer in a class action case.

  44. WDS says


    The referrals are not in the mix. They are what they are. I believe it was Judge Wright's intent that all of the sanctions were civil. Judge Nguyen suggested that there is an argument to be made that the punitive doubling of the cost and fees award enters the realm of a "criminal" sanction. I think that is what Ken was talking about.

  45. Nancy says

    anne mouse,

    I wonder if Pietz had any idea at all, back when he was first hired, just how far this case would take him.

  46. Frankz says

    We have the whole deal in IL with clerk/process server/drug dealer and the dead judge.

    Wait, what is all this? I don't recall this. What did I miss?

  47. nk says

    Went to your site, SJD. Holy guacamole. I'm in Chicago but I guess I should get out more because I didn't know most of the story.

  48. Matthew Cline says

    The judges correctly nailed Team Prenda for Attorney Rosling, faced with a trial judge who seems to have prevented the introduction of evidence, failed to make a proffer of the evidence that she was not permitted to introduce.

    What I recall is that Rosling requested to make legal arguments before Wright, and Wright told her give it to him in writing.

  49. Joe says

    Judge Pregerson — who began the day by announcing it was the 70th anniversary of his battle wound on Okinawa

    Wow. That kinda redefines the term "badass", don't it? Seems like Voelker deserves a little credit for not immediately asking for a recess so he could change his shorts.

  50. CheshireLion says

    The addition of a "Public Eviscerations" tag to popehat. That can be either really good or very bad… Or maybe both.

  51. SirWired says

    Damn; I'm only about one minute into the hearing, and it's already cringe-inducing. When your oral argument STARTS with one of the panel grilling you on why your clients appear to be dodging service, you are having a Very. Bad. Day.

  52. says

    An interesting question: what Duffy was doing there? He is purportedly broke, and yet he could afford flying to LA without any apparent reason. I'm sure that Judge Pregerson had no idea who was sitting in the gallery, otherwise… oh boy…

  53. AlanF says

    Please let this be remanded to Judge Wright's court! I thoroughly enjoyed attending the hearing two years ago (Was it really that long ago?), and am sure that future hearings will be even more entertaining.

  54. rpenner says

    In June 2010, I was in Honolulu, about an hour away from Pearl Harbor, watching someone I had disagreed with for years tell Judge Pregerson that he "was probably on the Federal payroll before" the judge. (Yes, it was a meltdown of an appeal with two pro se appellants armed with nothing but speculation and a filing fee going up against the US Government. It's not clear if it was an attempt to ingratiate himself or trying to boost his own ego.) Judge Pregerson responded, "Oh, yeah? When did you .." that sent the appellant bashfully comparing his 5-year stint as some sort of technician at the VA hospital from 1979-1983 with the judge's statement "I've been on the payroll since 1941."

    Glad to hear he's still fighting the good fight.

  55. swiftsure says

    I see this as a convergence of bad news for Prenda. If I remember correctly, Judge Wright's order was written with heavy references to Star Trek and this hearing was on May 4.

  56. Andy says

    Is there somewhere I can get a transcript of this? Not familiar with the process your side of the water with regards to timescales and what would be released into the public domain. Thanks in advance.

  57. rpenner says


    Judge Wright's order was written with heavy references to Star Trek and this hearing was on May 4

    "May the Fourth be with you" is a Star Wars reference.

  58. rsteinmetz70112 says

    Some appeals courts don't publish transcripts. I don't know if this one does or not.It's possible that one of the attorneys would make one but a transcript really doesn't have much use, except as entertainment and possibly to nail someone for not telling the truth to the court. The decision is what any further action would be based on.

    One point that been bothering me, Judge Nguyen seemed all hung up on the difference between "punitive" sanctions and "deterrent" sanctions. I'm not sure I understand the difference. Punitive is for punishment which serves two purposes, to deter similar conduct and to punish the evil doer. If you called it deterrence would it be any less of a punishment? She also mentioned lodestar enhancement and voiced several possible justifications for enhancement.

  59. Sami says

    Holy shit.

    If Judge Pregerson was wounded in battle on Okinawa seventy years ago, I assume that puts his age somewhere in the vicinity of ninety.

    What was he like in his prime? If he'd been hearing this case a couple of decades ago would Voelkner have even survived?

  60. Sami says

    … so I just started watching the video, and I have to say, first impressions:

    – Voelkner looks like he was really, really not looking forward to this

    – Tallman seems kinda chill and soft-spoken in a sort of worryingly mild-mannered way, like, he's asking these questions in such a mild tone that it seems like a trap

    – Pregerson doesn't have a laptop, he has papers but he's not touching those either, he's just WATCHING LIKE A HAWK THAT IS DECIDING WHEN TO DISEMBOWEL THE PREY IT HAS DEFINITELY ALREADY SPOTTED.

    I am suddenly glad I didn't become a lawyer, because I don't think that facing a panel like that is something I want to have to do in my life.

  61. LW says

    I can't imagine a situation where I'd want to become the defendant in a criminal contempt hearing. I'd rather throw myself to the ponies. And that's before prosecutors get cranky and find eleventy-seven other things to charge them with for wasting so much time and money.


  62. Andy says

    Thank you for the link, most appreciated. I only asked about a transcript as I have some hearing difficulties, so easier to read, but again, much appreciated.

  63. andrews says

    your clients threw you to the wolves, so return the favor by arguing in a manner that pretty much makes the situation worse for the client.

    A lawyer does not get to do that. Sorry, but the lawyer is generally stuck with the case until he is allowed to withdraw.

  64. Elliot says

    If Judge Pregerson was wounded in battle on Okinawa seventy years ago, I assume that puts his age somewhere in the vicinity of ninety.

    Born October 13, 1923. He was already a Second Lieutenant on Okinawa.

  65. NickN says

    So is this an attempt by Prenda to claim that they didn't have competent representation? Do they have a chance to back out of volunteering for criminal prosecution?
    Finally, is there any chance that if it goes to criminal court that they won't get bail?

    More popcorn please.

  66. Mich says

    I've read every Prenda post on this blog and I have to say, these are the most spectacularly stupid people I've encountered in this hemisphere, and they prove that over and over and over with the most magnificent lack of anything approaching intelligence as they run at the same series of brick walls over and over again. It's almost sublime in its horrific moronitude.

  67. Elizabeth says

    Can we just take a moment to appreciate the way Judge Pregerson enunciates "Sexual Obsession"? Love that man.

  68. Sorator says

    Watching that was hilariously awesome and informative. I love how Judge Nguyen basically offers suggestions to counsel to help their case… and Voelker didn't take it and Pietz did. I love how soft-spokenly keen Judge Tallman is (I think he's my favorite of the group), and I love how sometimes Judge Pregerson seems to be tottering off on an irrelevant story and then comes back and nails Voelker to the wall. Also impressive performance by Pietz trying to get the whole thing to stick; don't know if it will, and I'm honestly not sure I want it to (remanding to a full criminal contempt hearing would be awesome), but he made some excellent – if ambitious – points in my layman's eyes.

    And it was absolutely hilarious that Tallman tried to ask Voelker about the jurisdiction issue in the very beginning, but Voelker didn't want to talk about it… and then Voelker mentioned it at the very end of his rebuttal, and Tallman absolutely calls him out on it.

  69. Matthew says

    I think we're all being a little hard on Voelker. Everyone deserves the full protection of the law, and Voelker appears to be working with constraints that would make anyone struggle. It seems like his client is uncooperative, evasive, and openly ignoring some sound legal advise.
    I think however much we loathe Prenda we can all admit that they have some legal legs to stand on as it regards the criminal sanctions. Voelker is simply standing up and saying that if his clients are to face criminal penalties then they want the benefits of a criminal trial – and the law is on his side there.
    Put in this position he is still standing up in front of his clients and defending them to the best of his ability; he's standing out there holding up whatever feeble shield the law and the facts give him. Isn't there something admirable in that?

  70. The Other Thad says

    He is, perhaps, trying to do his job, but I didn't see anything admirable in his performance at all. Perhaps I'm too easily taken in by the professional appearance of a guy with a dozen cards with coherent and appropriate references on them, but, my god, it DID look professional.

    I kept wondering how he managed to keep all this in his head in an orderly fashion, but also kept the cards in the the right order, and picked up the right ones at the right time.

    It was professional versus amateur — or, wel-informed, well-reasoned guy against struggling in the dark guy. I know which I would rather have.

    Matthew, you seem, in fact, to have put his argument, in a few words, better than he did.

    But the biggest stars of the show, in their different ways, were the judges, and I found the video extract absolutely gripping.

  71. Sami says

    The trouble, Matthew, is that he's not really holding up a shield so much as pointing out that it's not fair for his clients to be expected to endure a spanking when by rights they're allowed to be thrown in that shark tank over there… while dodging valid questions from the judges and ignoring their anvil-like hints about a better approach for him to be taking with regards to, say, how he could get that spanking amended to a gentle slapping.

  72. mcinsand says

    Matthew is right. After all, who are we to expect to understand the planning and actions of a super lawyer. All he needs is a cape. No, no… I remember Edna's words well; 'NO CAPES!'

  73. prb says

    I can say that a criminal contempt proceeding would be a mess for the special prosecutor. It is a criminal proceeding with the greater burden of proof and the right to a jury. There are discovery requirements, rights to many pre trial motions, necessity of a true and specific charging document. Without question the defendant's want a criminal proceeding because they will wear down a special prosecutor who just wants to get rid of the case as quickly as possible and clog up an over burdened criminal system for what is a civil matter. It would open up the case for a settlement of the sanction award to 20-30% of the current number about 18 months from now. I'm not sure the prosecutor could even construct a factual scenario that would transform these facts into a criminal contmpt.

  74. I Was Anonymous says

    @Steve Simmons

    Who's gonna be dumb enough to represent them when they have to go back before Wright?

    At this point, I would guess it's a toss-up between Jackie Chiles and Lionel Hutz.

  75. lee says

    Did anyone count the number of times (total) the 3 justices asked Volker if he was sure he (or his clients) actually wanted remand to Judge Wright to conduct criminal contempt proceedings? I"m thinking at least 10. And why did the justices ask Pietz if the federal authorities had done anything re Judge Wright's referrals for prosecution? And why did the justices discuss among themselves the mechanics of Judge Wright appointing a special prosecutor?

    My prediction, civil sanctions will be affirmed (probably for the whole $275k) and the case will be remanded to Judge Wright to conduct a criminal contempt trial. I expect the 9th Circuit opinion will contain a suggestion to federal prosecutors that the integrity of the judiciary requires them to lend all assistance to Judge Wright re criminal contempt proceedings

    The special prosecutor will probably need a year to get his or her case together (we are talking about the whole prenda entriprise (nationwide) as justice nugyn tried unsuccessfully to explain to Volker.

  76. says

    so, the special prosecutor will need (and get) the fully assistance and cooperation of the f.b.i. this is why justices tallman and pregression laughed at volker (see justice pregersons comment to Volker "you're a great lawyer" it says so on your website)

    whatt kind of strategy is it to say: i want a special prosecutor (from the US Attorney's office) and the f.b.i. to do a "prostate exam" on me (especially since Pietz and Popehat and Techdirt, and about 10 federal courts) have already done most of the groundwork.

    Volker says that is what his clients say that want (and i believe that is what they told Volker to do

  77. says

    but talk about not thinking ahead. remember the fiasco for prenda when Cooper testified he learned about his siignature maybe being forged from an email from steel's mother in law.

    this means, steal's mother in law is almost certainly going to be visited by the f.b.i. what kind of legal strategy is it, that causes "you" to face possible "life" and causes your mother in law to being interviewed by the f.b.i. and probable subpoena to testify against "you" in a criminal trial

  78. says

    and if hansmeier and/or steel are thinking they can again assert the 5th in Judge Wright's courtroom, they are probably wrong. Hansmeier gave a deposition (under penalty of perjury) as the person most knowledgable re af holdings and i thin prenda. Im not a criminal lawyer, but, my understanding is, once "you" testify (and don't assert the 5th) you've waived it. so, in the criminal trial the prosecutor calls hansmeier to the stand; the prosecutor asks hansmeier a question about how prenda operated; hansmeier takes the 5th; Judge Wright orders hansmeier to answer and Hansmeier either answers or refuses an orderr from Judge Wright. If hansmeier takes this latter option, Judge Wright will jail him (for contemt) until hansmeier tells the judge he is ready to answer

  79. says

    steel has the same problem. after taking the 5th to Judge Wright, steel testified in the cooper/mother in law fiasco hearing. and as i recall, steel filed 4 or 5 sworn declarations in other courts saying prenda was actually a legitimate enterprise

  80. says

    but even if steel and hansmeier can take the 5th, they are still in an extremely precarious position. Gibbs and Cooper and whomever else the f.b.i. uncovers, will "eat them alive"; and the documentary evidence is horrible for them (see eg justice pregreson reading a prenda settlement letter in the 9th circuit hearing; and see the documents Gibbs provided showing where all the money went)

  81. says

    conclusion: the 9th circuit is going to give Volker's clients what they say they want; but i don't understand actually wanting a "prostate exam" by the f.b.i. and a thorough trial in front of Judge Wright (an ex marine drill sargent)

    to quote justice tallman:"just when you think you've seen it all"

  82. says

    conclusion 2 (life lessons for the rest of us to contemplate):

    if God (or three 9th circuit justices) ever look down upon "you" from on high and repeatedly ask: "are you sure that is what "you" want?" What are 'you" going to say?

  83. lee says

    Here is a very serious concern that Ken White and all criminal defense attorneys may realize out of this mess: Justic Pregerson asked Volker to recite who was paying him (Volker) and later twice said to Volker: "you may be involved in this" and said "is that what you [Volker] want?

  84. Weasel says

    I've been following this case (and all of Ken's comments) for years. So….

    With this latest go around I expect the following. The civil portion will be reduced by $41k, which is I believe the amount that was double as "punitive". The panel seemed to have trouble with the concept of punitive civil award fees at a district level, and despite the arguments that it "should" be extended, they will fall back on precedent almost every time.

    Like many others I suspect this case will be remanded to the district court for a full criminal case. This would be in some ways a win for Prenda. Before you get out the rope think about this: Prenda has demonstrated great skill in delaying things. The appeals for a contempt fine took over a year to resolve. They can stretch this out for years by continuing to dig between the laws that don't quite deal with this case. This was actually mentioned by Pietz as a difficulty in the case.