FBI: Federal Bureau Of Instigation – When the Feds Try to Script a Crime

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Another great reason to check out our website. That's anothernotguiltypod.com. Now, without further ado, here's this week's episode of Another Not Guilty.

At some point in that car, we had to own this in front of the jury. Mr. Malavi starts making terrible statements. He's been told that if he tries to get out of it, terrible things are going to happen, including his own murder or possibly his family's. And he said, look, I don't know how hitmen behave, but I thought that I was going to die. If he smelled anything,

everything fishy. So when I decided to say those things, I was thinking of every movie that I've seen about a gangster.

And I just kind of tried to play that part of a terrible gangster who didn't care about doing any of these things or hurting people.

Welcome to Another Not Guilty. I'm David Moore. Here, along with my fellow public defenders, presenting to you the untold stories of the criminal

justice system.

Objection! That assumes there's justice in the system, which there ain't. I prefer calling it the American criminal system.

These stories are about the not-guilty as public defenders get on a daily basis.

In an unjust criminal system. With a deck stacked against us.

All right. Welcome back,

everybody, for Another Not Guilty. And happy Another Not Guilty Day to you, my buddy Nikhil.

What's going on? Not much, man. Oh, happy Another Not Guilty Day to you, too, sir.

Yeah, you know, I was thinking to celebrate Another Not Guilty Day, I was thinking we should contact

a public defender. In a special place? In a special place, outside of our little pocket here in Los

Angeles. Let's check out a public defender in a different state. What state do you want to talk to?

Let's just get this globe going. I'm just gonna put my finger randomly on this globe.

Oklahoma? No, no. It's Texas. All right. Let's talk to a public defender in Texas, then. A little

Texas justice for our fans this weekend. Yeah. The Lone Star State. Let's see how they handle justice

out there. Hello. Hi, this is David from Another Not Guilty. How's it going? Good. I got Nikhil here

on the lines. Hey, what's up, Nikhil? Hey, what's up, man? We are looking for a badass public defender.

Do you happen to know one or of one? Or anyone? I'll see if there's anyone left in the office.

You're like, I just work here. Hold on, hold on. Hey, well, you'll do, huh? The public defender of

the day. This is who you get. Well, what's up, Mike? How you doing? I'm good. It's been a busy week.

We got another couple of lawyers in trial here. They just sent a jury home for the weekend to

just talk with their families about the case. So we all got our fingers crossed here for them.

I was gonna say, what jurisdiction do you practice in, Mike?

So I'm in the Northern District of Texas, which is federal court in the Fifth Circuit.

Okay. And where's your office actually at?

Dallas.

And how long have you been in Dallas?

I came over to the FPD in 2018. So we just had like a two year anniversary, about two years in

federal court.

Wow. Congratulations.

The FPD.

Thanks.

Yeah. I like that. The F in front of it.

Yeah. Well, that's, that's what they call us.

Well, glad to have you on the podcast then. Uh, and we know you're a badass public defender in Texas.

Okay. So tell us about this case you got for us. That's not guilty. What, what were the charges?

So this is the case of the United States of America versus Eskandar Malavi. And when we first got the

case, that's just actually different charges from what it went to trial on.

Do you normally defend your clients from the United States of America in every case?

You know, we try to, wherever we can.

You are going up against the, the United States.

Yeah. The prosecutors, uh, make sure that the jury remembers that whenever they're telling

them about what their job is for sure.

Okay. So it's the United States. Go ahead. Versus who again?

Eskandar Malavi is my client's name. When we went to trial, it was a one count of attempted

extortion affecting interstate commerce. A second count state attempted kidnapping. And then they added

counts three and four were both use of facilities and interstate commerce to commit extortion. And

those counts were basically just, if you use a cell phone and you're doing something bad,

they can charge you for separately for using the cell phone because it's simply possible.

So they can charge you in federal court for just basically trying to do the crime that you're

already choose that you already are charged with. If you use any device, let's say the mail,

uh, any wire or a cell phone, right? Because it impacts interstate commerce. So that's a separate

additional crime.

Yeah. I mean, yes, that is a separate additional crime. And the way they can,

they, in a lot of statutes, it's the interstate commerce element that they'll use to

give it federal jurisdiction. But interstate commerce has been defined so broadly as an element by all of

the appellate courts that it basically has lost all meaning. Yeah. So it's really a way of getting

more cases into federal court and getting around a double jeopardy. What's the initial, um, kind of

impression of the case based on the discovery you have? What do you get the facts? What are the facts?

So the government facts, as they usually are, don't paint a very nice picture. Um, they basically say

that a confidential human source has approached or did approach an FBI agent, uh, or actually as DEA

handler at the time and reported to the handler that a man known to him as El Senor or Senor, uh,

want has approached him and wants him to, uh, arrange or help him hire someone to kidnap or possibly kill

a former business partner of his, of El Senor's. And that the DEA handler turned it over to the FBI,

because that's not really a DEA thing. That's more of an FBI thing. And that once the FBI got involved,

uh, they put an undercover agent on the case. They do in fact meet in a car in a jack in the box

parking lot near Dallas and that the conversation is recorded and that what's recorded on the

conversation is my client negotiating a deal and finalizing a deal to have his former business

partner kidnapped, taken to Mexico and if necessary killed in order to, uh, extort a, the ownership

interest of a gas station, uh, that they had previously jointly owned, basically sign over the gas station

under threat after being kidnapped and taken to Mexico. And that, that conversation is all recorded.

And that in the days following that, um, the FBI agent continues to be in contact with my client

and records all the conversations and calls my client to give him little updates here and there to

say that he's been doing surveillance and he's working on the agreement that they have and, um,

asks him if he still wants to go forward with it. And he confirms that he still wants to go forward with

it. And so at that point, uh, they go get an arrest warrant and they trick him into meeting somewhere

and arrest him at that time.

So that was a lot. Okay. So they're saying your client approached somebody else. What was the

name? El senor or el? Uh, no, that the, in the confidential source said that my client was

senor, that a man named senor and approached the, uh, informant and told him he wanted his business

partner killed. Okay. And then, and then the informant contacts the FBI and the FBI sets up

a sort of like a, a meeting where they all kind of get together and make an agreement or.

Yeah. The FBI gets involved, sets up an agreement. They all meet in a car and, uh, where they say

it's recorded that my client makes all sorts of inculpatory statements and, uh, willfully and

voluntarily negotiates a deal to have all these bad things done to his former business partner and,

uh, you know, open and shut case to them. So they issue an arrest warrant.

And this is all over their, their theory of his motive is that he's trying to extort,

uh, like the equity interest of a gas station that they both own together or that they used to own

together. Yeah. And that part's, uh, well, the part about the gas station is true. I mean,

that's factual and that's what, that's what we get to when I get to actually talk to the client after

we see the criminal complaint, um, and hear his side of the story. But all the informant told the FBI

was that senior wanted his business partner killed. And, uh, then they have the meeting

where he explains that, uh, he and his former business partner had a gas station together

and that he got kind of screwed out of the gas station and a lawsuit and that now he wants the

gas station back. And so that's why he wants to hire a hit man. This is the government's theory.

Got it. Got it. Is there any indication in the reports that the audio or video recorded

any, all these conversations? Yeah, most of them are, um, not the conversations with the

informant, but once the undercover gets involved, all of the phone calls are recorded

and the conversation in the jack in the box with the undercover agent is recorded by, by the FBI

undercover. Okay. Okay. And, uh, all right. So you get the case, you read the reports and what,

you go meet the client? Yeah, we talked to him. Um, we, so the first thing that happens in federal

court is you go through the detention proceeding. And unfortunately, even though

Mr. Malavi was almost 70 years old, had never been arrested before in his life and supposedly was

being presumed innocent of these charges, he was held, uh, by the court, uh, pre-trial. So he was in jail,

even though he had no criminal record whatsoever. Wait, wait, I have a question for you. Cause you

said presumably, uh, you know, presumed innocent, right? Like, right. It's not how our system works.

And you know, the government hasn't actually done anything to prove that he did any of those things

other than write it down on a piece of paper. Right. Yeah. Right. Cause I, I'm, I don't work in

federal court. Right. So I just have this question for you. I recently, you're supposed to have the

same constitution too. Oh, well, I mean, it's not different for you guys cause it's the same

everywhere we go. Well, you know, I mean, from con law, I remember, you know, they used to say

that federal courts are so much more institutionally supreme and so much formal and the judges there,

you know, take the constitution so much more seriously than the kind of, uh, transactional,

uh, courts that we practice in. Right. So my question is, I just watched this trial with, um,

this guy, his name is Roger Stone and, uh, it was in federal court and he like threatened to judge

on Instagram and somehow that guy, uh, he, he stayed out of custody, right? Yeah. I'm just,

I'm just kind of wondering, like Roger Stone's threatening judges during his pre-trial and, uh,

pretty clearly with like, you know, bullseye mark on a judge's face. And, um, and your client has no

record at all. No, no evidence has been presented of his guilt and he doesn't get out pre-trial.

Yeah. That's what happened. Okay. So your client now has to, to fight this case from the inside.

Yep. So where do you go from there? Well, yeah. So obviously we get his version after that. Um,

and so he is adamant from day one that he is innocent of this, that he's been, you know,

set up or, or tricked into doing this. I mean, he's not a lawyer, so he doesn't know the terminology

that we would eventually settle on and realize that this was an entrapment case. Um, but he's

adamant from at minute one that he is innocent of this. So he tells us right away. And every time we

saw him, what really happened, and it was quite different from what the FBI was told by this

informant. There are some similarities, but his version starts actually before, um,

2018 is really when the informant had given all this information about that's when all of this

happened. Okay. But turns out my client has never in his life been known to anyone as sinual. And in

fact, it's not a Hispanic man. If you could recognize from the name, he is an Iranian, uh, by birth.

And he came to this country decades ago, uh, the right way, fleeing, uh, oppression. And he came to

the United States of America because he knew or believed that the United States of America was a

better country with fairness and freedom and the American dream. And he came here and he succeeded

here. He did start a business here, a gas station that he owned, uh, with a friend of his and they

owned it for many years and it was successful. He has a beautiful family here. He lives in the suburbs,

not far away from where I live and actually in the same neighborhood where my investigator from this

case lives. And one of his neighbors was a man named Eric Hill, who I referred to earlier as the

informant. One of his neighbors has a kid and Mr. Malabi, my client has a kid, two sons, and they

actually know each other from high school. And this is in like 2016. And so their kids are friends.

They don't really know each other that well. They have really nothing in common other than the kids,

as sometimes happens with dads in the suburbs. And, uh, one day, Mr. Malabi comes home and he

actually finds that the two kids are smoking a little weed at his house. And Mr. Malabi is kind of old

school and he does not, he does not like weed. So it turns into a huge thing with the kids. He calls

the dad, Eric Hill, who's going to turn into an informant later and they get into a big dad fight

about the weed and how terrible, uh, parent Eric Hill is. It does not end well. And they just really

don't talk after that for a very long time. But wait, the government's theory is that your client

solicited essentially kidnapping and murder, but he doesn't, he, but his character is that he would

call another parent to be like, my kid is smoking marijuana, right? Like that's the kind of, that's

the government thinks that's totally consistent. Right. Well, they thought a lot of things were

consistent in this case turned out not so much, but yeah, not only that he's the type of person who would

report, uh, weed smoking, uh, in high school and think that it was a just absolutely terrible thing.

Uh, but also that he would then make the decision to approach that person that he yelled at and said

was a terrible dad and say, Hey, I know a few years ago, uh, we had a fight. We haven't talked since

then. And you're a terrible father, but if you could help me murder someone, that would be fantastic.

You know, you, you smoke weed, so you probably know somebody who can kidnap and kill somebody.

Right. Exactly. Well, because people who smoke weed are the same people you can hire to kill other

people. To be honest though, if he does have that opinion of weed, maybe, maybe, maybe he does think

that that's the kind of dodgy person you could go to. Possibly, possibly. I mean, I guess it does cut

a little bit both ways, but I don't think it cuts back far that much. But yeah, so that's the first kind of

funny thing is, and he, and again, he's never just my, my client is not senior. Like it's ridiculous.

He's a middle Eastern man. So this was already a lie given to the FBI, but they get in this fight

in 2016 and they don't really talk. The kids stay friends. Um, and that's important because the kids

talk to each other and my client's son hangs out at Eric Hill's house because it's a little bit more

free over there. There's a little bit less supervision. My client is not there to sort of

monitor them and see what they're doing. Standard high school stuff, right?

Right. Totally standard high school stuff. Anyone can relate, uh, especially the folks who ended up

being on the jury, I think. And so, but they, my client's son talks to Eric Hill and just casually

about different things. And a couple of the things that get brought up are one, my client's son drives

an old Mercedes. My client owns it. His son drives it around to get to school and stuff. It's not like

some big flashy thing, but it's like an older Mercedes. So it's not the worst car in the world.

Uh, and two, my client's son also tells Eric Hill about this legal saga that's going on with the gas

station. Uh, and this part of the case was true that there was a, a legal, a civil case between my

client and, uh, his former business partner that he had run the gas station with for years. They did

have a falling out. They did have a civil suit to decide what was going to happen with the ownership

interests of the gas station. And they did eventually reach it, uh, an agreement through

an arbitration where my client received a pretty sizable sum of money for his portion of the gas

station and the, uh, the co-owner retained ownership of a hundred percent of it. So he basically got bought

out. My client got bought out, but he wasn't happy with it. And we admitted that throughout the trial,

he was not happy with the ending, but he was glad it was over. And the kid knew about it and we talked

to Eric Hill about it. So he told, he told Eric Hill that his dad was not happy about the settlement.

Right. Yeah. So it just in a casual, you know, yeah, we got this lawsuit going. I mean,

dad's not happy about it, but I mean, this is what's going on. Just sort of comments like that.

Okay. So this is all happening without my client's son or my client or anyone knowing that Eric Hill,

uh, despite his status as a suburban dad with a high school son has actually had a very long history

of cooperating with government agencies, uh, to inform on people. And it's been going on for,

I don't know if it was 20 or 30 years, but it was like back in the day, he was helping out with some

drug stuff on the border and he was actually getting paid. I think they eventually disclosed

as Brady evidence that at one, the largest amount he could remember being paid for one case was

might've been $10,000 or some thousands amount of dollars for one case. So he was doing well at some

point. And, uh, he also more, much more recently had gotten arrested in basically running guns, uh,

from Texas to another state. I forget which state it was, but he'd gotten caught red handed doing

that and was facing federal charges in the Eastern district of Texas. And so he was trying to work off

that case and he had done some things to work it off, but no one had ever told him that, uh,

he was done working it off or that he was safe from the federal charges. So he was freaking out.

And that's what my client's son didn't know when he was unknowingly feeding Eric Hill,

this information about, uh, a vulnerable situation or an emotional situation that my client had ended up

then. Uh, and even to tell the FBI either. Hey, A and G fans. Thanks for listening. Got Facebook,

Twitter or Instagram, like us and follow us. And please leave a comment. If you like this episode,

was he involved in law enforcement in the beginning or was he a, was he in law enforcement in the

beginning or was he a criminal first and how he got involved? He was always a criminal, always a

criminal. Okay. But then he's, yeah, he was always working off the case or getting paid, um,

to be a criminal. And what's his, but what's his front then? Cause he lived in the same neighborhood.

I, I, I assume, right. Or their kids go to the same high school. Yeah. He lived in, in the Frisco

suburbs, North of Dallas. So then what was his front then? Did he have like a job or what was,

did he have something? You know, it's really, we had my investigator on this case, um,

basically worked on the case for a year straight. I don't know if he slept the whole time.

Cause the case bothered him so much. Um, his name is Ron Serna and we were trying to figure out for the

longest, what Eric Hills front was. And we really couldn't find any, he's sort of a mysterious figure

who he just sort of makes his money. Um, possibly through drugs. We thought at one point, not really

able to confirm it. A lot of moving around that we found, uh, in fact, by the time this case went to

trial, they weren't even at the same house anymore. Um, so just kind of a transient figure who, uh,

is involved in some bad stuff and has been for a long time. And he's just living in the middle of

the suburbs. Um, okay. So we hear Eric Hill basically gets hit with all this information,

kind of maybe seeing your client as a mark maybe. Right. Cause he's drives a Mercedes.

Yeah. I think they're, I think seeing my guy. Now, one thing I haven't mentioned is, uh,

you know, Mr. Malavi is English as a second language. He speaks English pretty well. He didn't

need an interpreter at trial, but he's definitely, uh, you can tell when you talk to him that it's

his second language. And so he can kind of get led in conversation a little bit. He is also 70 years

old. He's very sharp still, but he's 70 years old. Um, and he's a little bit quirky as you can maybe

tell from like the weed story and the fight. So I think Eric Hill did kind of see him as a mark.

And I think it was probably a little bonus to him that, you know, they had this grudge from a few

years back. I mean, the grudge wasn't so much that we thought like, yeah, this is,

this would make someone want to set someone up with a federal crime on its own, but it was still

like a little added flavor to that. So Eric Hill gets this information and starts contacting my clients

about the car and they text back and forth for like a month. And you know, we had all the text

messages and it's just phone tag for like 30 days. Uh, just nothing about killing anyone or

kidnapping or the gas station or anything like that. Uh, just about the car and a picture of

the car at one point. And when are we going to meet up and hello? They're both calling each other

senior there because they're selling the car, right? Is that there, is that what it is or

right? Yeah. The kid's car. Oh, sorry. Yeah. The kid. So the, the son's car,

Mr. Malavi was looking to sell that car at one point. And so that was what Eric Hill used to say,

hey, I might buy this. I like your, your old Mercedes. It looks good to me. Let me talk to

your dad about it. Okay. So now they're, they're talking about it. They're texting,

they're calling each other else in your, yeah, that's texted. Um, I'm actually looking at it.

So Eric Hill texts him, um, senior, can we move it? Uh, same time tomorrow. I'm still in downtown.

Won't be back in time. And then the next day, my client texts back, uh, hi, senior Eric. Sorry,

I didn't see your message earlier. I mean, it's just, it's just two dads in the suburbs. You're

calling each other senior for some reason. I don't know any other way to describe it.

Yeah. I mean, I'm kind of wondering, like, does Eric Hill think your client's Mexican?

I don't think so. Okay. It's a, it's Tex-Mex.

We know you guys like K-So, man, but, uh, you guys like K-So, you guys calling each other senior?

When we asked, when we asked him about it, Mr. Malavi said, I didn't know why he was calling

me that. I thought it was just some funny joke he was doing. So we would like text each other

senior. Yeah. He's like, I just thought he was high.

He probably was.

Yeah. So it's, but how funny is it that like, this is the, so I get this criminal complaint.

That's like the FBI thinks El Senor is trying to have someone murdered. And then I get the

discovery and it's like these two dads with nicknames for each other.

So what, what happened? What happens next?

They're texting about the car and they're trying to come up with a time to meet. And when they finally

meet, Mr. Malavi is trying to sell the car saying, what do you want to, what price do you want to

give me for it? Um, you know, if you want it, you can have it. He doesn't care where the money's

coming from. Even if he doesn't like this guy, if the guy wants to buy the car,

he can buy it. Eric Hill doesn't want to talk about the car once they're actually in the same

room at the same meeting. Eric Hill wants to talk about, so what's going on with your business

partner? Your son says that, you know, you got screwed out of something or what happened. And it's

over at this point for Mike. I mean, they're settling this thing. It's, it's been going on

for a couple of years, but it's done. He doesn't want to talk about it with Eric Hill, but Eric Hill

knows about it and he keeps pressing them about it. And Eric Hill, at some point brings up, he says,

I know a guy, I know a guy who is a real estate property specialist, and he's very good at what

he does. And he's very good at solving problems. And I know that he'd love to work with you.

And that's how it is first presented to my client as just this sort of strange offer to make a

connection to a real estate person who could come up with some magical way of getting his gas station

back if he wanted that. My client has no interest. But Eric Hill keeps asking and texting and calling.

Missed calls. Calls all day. Keeps talking about this.

And is there, and what's your client's response in the text messages?

Basically nothing.

Okay, he's not really responding.

Missing the calls, not responding to the calls, asking about if you want to buy the car,

trying to redirect the subject back to what he actually wants to sell. Certainly nothing about,

yes, I got screwed and I'm looking for a way to get back at him. I mean, nothing,

nothing like that. Not even a whisper of it.

Okay. So go ahead before I interrupted you. So he's a bunch of missed calls. Go ahead.

So he won't back off of it. And again, as far as Mr. Malavi knew at this point,

annoying as this was, no suggestion of illegal activity had happened.

I mean, there's just, it's just a real estate specialist with, you know, whatever tactics he has.

And so Mr. Malavi thinks that Eric Hill is basically just trying to like get a friend

business or something like he's trying to recommend someone who's going to charge him 500 bucks to

look over all his records and then say, you know, I can't do anything for you or come up with some

plan that doesn't work. So he's, he's not interested in wasting his time, but Eric Hill is

so insistent and annoying that at some point it just becomes the better idea for him to say,

all right, if he wants, I'll meet with them. If he wants to meet with me, I'll meet with them.

Mr. Malavi wasn't working at the time because he had been the owner of the gas station. Now he wasn't

because he just had the settlement, which was fine. He says, if he wants to meet, I'll meet,

but I don't know. I'm not going to have anything to, for him to do, but if you keep telling me about

him, I'll meet with him. And so once my client agrees to meet with the real estate specialist,

that is all that Eric Hill in his desperation to work off a case needs to go to his handler and say,

I got a guy who wants to hire someone from me. And he's, and he tells them that he has someone who

wants his business partner kidnapped. Mr. Malavi had never been told about this. That's when the FBI gets

involved. And the term handler is a term we don't hear often on our podcast. Can you describe what

a handler is? Sure. So informants, snitches, cooperating defendants, they, when they are working

with a government agency like the FBI or the DEA, they will have a specific agent from that organization

who is considered their handler. And the handler is the person that that informant is going to have

as their point of contact for the work that they are doing, whatever that is for the agent. And it's so

that only one person is from the agency is having contact with this informant for security purposes

and consistency of information. So once your client agrees to meet the property person, then Hill goes

to the handler and says, we got, or we got one. Right. And then what happened after that?

Yeah. So that's when the FBI gets involved. DEA tells the FBI what is said. And that's when the

FBI sent puts in an undercover because of what they want to do. And this is actually a good thing that

we told the jury was a good thing. The FBI tries to get the informant out of the situation,

or at least they're supposed to as soon as possible, because even they recognize, even if they won't say

it in their reports sometimes or search warrants, that the informants and the snitches are terribly

unreliable, biased and have incredible credibility problems. Everyone knows this. And yet, sometimes it

goes unspoken except by our side in court. So they put the undercover in to try and get Eric Hill out of

the way so that they can start getting some credible information if they're going to build a case against

someone. Problem is that because Mr. Malavi doesn't actually want anyone kidnapped or killed,

Eric Hill does not want to get out of the way. Because what would happen if Eric Hill got out of

the way is the FBI would call my client and my client would say, what on earth are you talking about?

And who are you? Because he did not want any of this to be happening. So Eric Hill sort of refuses

at a number of points to step aside from the investigation.

How do you know that from the story that he refuses? Did the FBI ask him to get out of

the way or did somebody testify to that? Well, a few different ways. So what happens is at this

point in the discovery, we start seeing two sort of parallel tracks of cell phone activity and

recordings. One is this track that the FBI agent, the undercover, is now producing with the client,

the FBI where the FBI is texting and calling my client directly to try and get him on the phone

and is not having success doing this. Because again, Mr. Malavi, not looking to be involved in

this. So we've got missed calls and the logs for that. We've got screenshots of those calls where the

FBI is trying to get in touch with them and my guy is not picking up the phone, clearly not eager to be

involved. They have Eric Hill place a call to Mr. Malavi that is recorded that says, you know,

the guy I told you about is coming into town. Significantly in that recorded call, Eric Hill does

not say, remember how we talked about having someone kidnapped or killed and getting your gas station

back. Eric Hill says, hey, remember that thing that we talked about, the guy that's going to help you come

into town. All very vague statements, all of which could be about any type of business person.

The only interesting thing in that phone call that Eric Hill adds is he says, yeah,

and he says it real quick too. He says, yeah, the guy coming in, his name is Iceman. He's coming in to

help you. He's going to be in next week or whenever he says it. He's coming in. He invents this name,

Iceman. We actually found out in trial that he was not told to do that and that the undercover was

pretty pissed off that he had been named Iceman by Eric Hill. The agent actually testified in trial.

I asked him, I said, that's pretty ridiculous name, right? He said, yes, I concur. That is a ridiculous

name. I just, in my head, I see such like a FBI suit on the stand being like, yes, I had to assume the

identity of Iceman. Not only was it funny, but it just, it went to our entire narrative of this guy

is not in control of what Eric Hill is doing. You can see it even in little moments like this. So

that, that sort of fit in for us too. It was also hilarious that this guy had to, for the rest of the

case, he had to, he had to refer to himself on all of the recordings as Iceman.

He was so, I mean, it was clear that he was very unhappy with how this case played out.

Okay. So I think where we left off in the story was you were saying that the, the government or

the FBI wanted Mr. Hill to get out of the way, but he wouldn't.

So they're trying to extract him from the situation. And so when I said before,

there were kind of two parallel tracks of cell phone discovery. The one was the FBI agent. The

other one happening at the same time was Eric Hill and Mr. Malavi. So the, and it was really an

incredible contrast. The FBI agent, and we said this at trial to the jury, the FBI agent as an

individual did everything right that he's supposed to, to not entrap someone. If he were doing it on

his own, we would not have had an entrapment defense because he was just sending these messages. Hey,

if you want to meet, let me know if you don't, no problem. That was the tone, if not the exact

words of everything the FBI agent did for the 95% of it. At the same time as the FBI agent is

proceeding by the book, Eric Hill, unbeknownst to the FBI agent is sending Mr. Malavi text messages and,

and giving him information about the FBI agent that would terrify the bravest person in America.

And here's what I mean by that. Mr. Malavi is reluctant to go through, uh, with any of this.

Uh, I should say he finds out Eric Hill finally reveals to him after he tells the FBI that he's

got someone on the hook. Eric Hill meets with Mr. Malavi again. And of course it's not recorded

because Eric Hill knew what he was doing was wrong. Um, and he tells Mr. Malavi, uh,

oh, by the way, uh, this guy who's a specialist, uh, he is definitely a specialist because he actually

works with the cartels and he uses some pretty violent techniques to get what he wants. But don't

worry. You are going to get your gas station back. 70 year old client never been arrested before in

his life. Freaks out. Why did you do this? How could you do this to me? I don't want anything to do

with this. You knew I didn't want anything to like, what, what did you do? Um, and then just tries to

ignore. I mean, he really, you, and you, we saw it in the cell phone discovery and records. I mean,

Mr. Malavi did not want anything to do with Eric Hill as it was, as he was trying to get

the meeting set up between Mr. Malavi and the FBI agents. And that, cause that's how we found out

about it. And a couple, a couple of things happen to demonstrate that. Uh, the first thing is Iceman,

as he is now known calls Mr. Malavi and Mr. Malavi picks up the phone at one point,

cause it's been a few times now, and he's been getting texts. Mr. Malavi has been getting texts

from Eric Hill about how he's got to talk to this guy. Um, this guy has spent money here already. Uh,

you had me bring him down here, things of this nature. So the intimidation is, is now starting in

full force. My client is a clever man. Okay. In all aspects of his life, he's been savvy for a long

time. He sleeps with a CPAP mask. He sleeps in one of those masks that helps, helps his breathing at

night. Yeah. When I, when he picks up the phone with Iceman, and this is recorded by the FBI,

my client is speaking through his mask and pretends that he is sick and recovering from cancer

treatments. Wow. This is what he says to Iceman. I'm sick. I'm on treatment. And he's speaking really

slowly. I mean, he did everything he could to make it sound like he was on his deathbed. And it sounds

that way. And not only did he do this while the FBI was recording it, Mr. Malavi was recording it also.

Wow. Okay. That's pretty savvy. Yeah. He was recording because he now believed that,

well, he knew he was being set up by a dangerous person. He didn't know that Iceman wasn't real.

Okay. He thought that he'd been put in contact with the cartel. Okay. So he was scared as anyone

would be. So he's trying to make the cartel just decide on their own. There's no business here without

it being his fault to make them upset. So he wants the cartel to call him and hear a man who's dying,

who doesn't want a meeting and think, man, the Sarah kill guy, like this is bullshit.

Uh, we don't need, I mean, we're not going to call this guy back again. And so he pretends he's sick

and the FBI agent doesn't put any pressure on him. Sounds kind of confused as you might be,

if you are an FBI agent, who's used to infiltrating white supremacist organizations and gangs,

and you have just been made to call El Senor, who it turns out is an old man in bed.

Can I ask you something? Um, does, does your client call him Iceman sometimes?

Like Mr. Iceman, please, uh, Mr. Iceman. No, I don't, you know, like...

Not in that phone call, but yeah, he actually does refer to him as Iceman a few times in some other,

in some recording. And it's, and it is in that sort of English as a second language. He's actually,

to jump ahead a little bit, there's another recording between where it's him and Eric Hill talking,

and my client knows he's being recorded. I'll tell you why in a minute. And, um, my client is saying

things like, so, uh, this, the Iceman, uh, he, he kills the people. What does he do? You were

telling me last week. Could you repeat it again for me? Oh, so he's trying to get Eric Hill to be like,

admit what, like, you know, what kind of duping him, like, oh, you told me last week that this guy

kills people. Right. And trying to get Eric to say it clearly. Oh, okay. So I see. Yeah.

That's next up right after this phone call where the FBI says, you know what? You don't have to meet

with me if you don't want to. If you're sick, you know, call me if you want to meet, not,

you have to call me nothing. No pressure. It's fine. No entrapment from the FBI side. Okay.

So my, my client, he actually on the recording and this guy played for the jury. Iceman says,

all right, so you don't want to meet then big pause. My client threw the mask. No, boom. Yeah.

Case should have been over right there. Right. Uh, and it would have been if not for Eric Hill.

So FBI agent. So the FBI agent after that, again, doing the right thing. And, and to his credit,

admitted this on the witness stand later at trial, did not actively pursue the case after that phone call.

He didn't try and set up surveillance or do anything else. He had someone who said they didn't want to

meet. And there was no case for him at that point. Uh, but Eric Hill still thinks he's on the hook for

running drugs in federal court, running guns in federal court. So he, um, keeps going on Mr.

Malavi and he calls Mr. Malavi. At one point there was, it was 30 times in one day.

Um, other points it was 15 or 20 with sort of the equivalent number of text messages. And he gets

Mr. Malavi to agree to meet him at a Chili's up, up here in Frisco. At a Chili's. Oh,

small business magazines, uh, power lunch spot. Exactly. Two for one. All right. Let's

bloom an onion and murder. The same Chili's you know, and love, uh, apparently is also a place where

long time DEA informants like to try and set up meetings. I don't know. That's not true. If

Chili's, if you're listening, we're not, we're not, we want any sponsorships we can get. We're not.

If it's the Italian mafia, it's at an Italian restaurant in little Italy. If it's the Mexican

cartel, it's Chili's in Frisco. Actually, I have two questions for you. I mean, I, I don't know.

You should call Chili's maybe pitch that as a slogan. That might be, that might be a great one.

I got a couple questions for you real quick before we move on. Can you tell me, I want to paint,

I have a picture of Eric Hill in my mind and, uh, and, uh, and your client. And I've also,

cause I looked at the newspaper article, but can you give me an idea of what the FBI agent looks like?

I mean, cause in my head, I'm like, if he's a cartel hit man, is he, is he Latino? Is he kind

of a SWAT type kind of dude? Oh yeah. So you're asking, you're, you're asking questions that are

going to play a big role in the story because it's, he works with the cartel, but he is not

a member of the cartel in his, uh, invented backstory. Got it. Uh, Iceman is, well, I mean,

he looks like he's Aryan nation to give you the quickest picture possible. I mean, he's got sort of

a Hitler haircut and tattoos up his arms. Um, or I, I think he had sleeves of tattoos and, uh,

sort of like a, a very well-built, very tall white dude. So a physically intimidating kind of guy,

like, I mean, big, extremely physically intimidating. Yes. And, uh, Mr. Malavi actually pointed this out

when we would see him in court to testify. Mr. Malavi immediately leaned over and said,

he did not look like that when he was in the car, he was in, you know, um, like intimidating,

you know, white supremacist style clothing, um, you know, biker type clothing and his hair

was grown out and long so that he looked like a crazy mountain man or something like that. And when

he showed up to court, it was, you know, like slicked over. Yeah. FBI suit kind of like very

clean and crisp. Um, yeah.

At this time, I'd like to thank and acknowledge Caitlin Gerber and Gabby de Almeida, our newest

members to the A&G Patreon team for their contributions to the podcast. If you too would

like to contribute to the podcast, then please visit our website at anothernotguiltypod.com

and click on the Patreon link. Thank you.

So, um, so he wants him to meet at a Chili's and after pestering and pestering and pestering,

and even texting him at one point, I'm not coming, which we had in evidence,

Mr. Malavi thinks this guy is not going to stop texting me. I don't know what's going to happen.

And he drives and he goes to Chili's and he meets Eric Hill at Chili's. And, um, again,

shout out to my investigator. Uh, my investigator found the table number that they met at. My

investigator found the waiter who turned out to be a part-time teacher, but who still had the same

shift a year later that they met with at that restaurant. And we were ready to call him as a

witness if we needed to for any reason. So we had it all kind of down and it was great investigative

work. Uh, but they meet at the Chili's and Mr. Malavi, because he's savvy records the entire

meeting on his cell phone. And this is a meeting where Eric Hill knew that his plan was falling

apart. He wanted to impress the agents. He wanted to work his case off. It became clear later in the

case that he also, he wanted this to be a future that he had informing on people. He wanted this to be

a regular source of income. And he could feel at that point that this was all coming apart on him.

Uh, because Mr. Malavi was, uh, not playing into his hands as much as I guess he, for some reason,

thought he might. Mr. Malavi, uh, is recording this meeting. It's like a 30 minute recording.

And, uh, Iceman had told Eric Hill, they did know about the Chili's meeting. Uh, Eric Hill had told

Iceman in texts, hey, old man wants to meet and Iceman texts him back. Okay. Um, tell him if he

wants to meet with me, fine, I'm leaving tomorrow or in two days or something like that. If he doesn't

want to meet with me, no problem, which again, thank you, Mr. FBI agent for not trying to entrap my

client and keeping it casual. That is what he was supposed to be doing. So how does Eric Hill follow

that instruction as is recorded by my client at Chili's by making incredibly violent threats against

him that we were able to play for the jury? Wow. Those threats at Chili's there, there it's,

there's a lot. The highlights are you asked before, Hey, what did Iceman look like? You know,

Latino white, whatever. Uh, well, Eric Hill puts a lot into the story of Iceman. Here's how he

describes him in Chili's. And this is a transcript from the recording. Uh, he's like a big white guy,

long hair. He walks with a cane. He's been shot in his leg, dude. He'll kill you in a, he's,

he said he's a killer. He was in fucking desert storm and shit. I don't know what he's doing.

Don't tell him. I told you, don't tell DJ what I told you, but we're not supposed to be talking

about that. That's the first description of him. He says, uh, Oh, then he goes on to say,

he'll like literally kill us. If we do anything wrong, he'll kill me. He'll kill you. I'm telling you,

you don't fuck with this guy. Okay. Then, then the coup de grace comes a little bit after that.

He said, uh, Mr. Malavi is actually not biting on any of this during the Chili's meeting. And it's

clearly starting to annoy Eric Hill a little bit. Um, Mr. Malavi just keeps asking those weird

questions like, Hey, what did you tell me about last week about X or Y or Z? Cause he's trying to

like get all, he's playing detective. Yeah. He's trying to build his own case now. Cause he thinks he's

going to need it later. And so it's not, none of this is taken for Eric Hill. So there's kind of,

there's sort of, there's a pause in the conversation where they're just sort of clinking of glasses and

Eric Hill's trying to think of what to say next to salvage this. And he says, out of nowhere,

maybe he'll kill us both. He'll do us a favor. Mr. Malavi says, excuse me. Eric Hill says,

don't you want to see your son's children? Mr. Malavi says, who you don't want to see your son's

children? Implying, of course, that if he did not go through with this, if he pissed off Iceman,

that he was going to be murdered and never meet his grandchildren.

I mean, what, one thing that's striking me right now, two things actually, one, the repeated phone

calls as, and then these threats, right? Like we have cases all the time where, you know,

our clients would be charged 100% for annoying phone calls or even get a restraining order granted for

the number of the kind of harassment that's going on 30 times in one day, or, you know, 15 calls in

one day, plus the 15 to 20 text messages. Then at this meeting saying, you know, repeatedly telling

somebody you're going to die or implying that you will be murdered, but for doing this conduct or but

for, you know, following these instructions, or, you know, taking my lead. I mean, I think that we've

had cases all the time that would be charged with a criminal threat. I mean, that's, you're saying

that this person's going to die over and over and over again. It's just so striking to me that so much

government, like so much criminal activity could be ignored for the purpose of, you know, this guy kind

of just, you know, kind of acting on his own to bring in a potential, a potential criminal to

the FBI, you know, because he still thinks this Iceman guy may be real. Like, he's like the

boogeyman. Oh, yeah. He's sure this guy is real. Okay. I mean, he knows Eric Hill's a bad guy. He,

he doesn't even care about weed, right? So he, he truly believed this was absolutely all real and

that Iceman was a hitman who would kill him at the drop of a hat. He also, I mean, there were other

quotes in that recording too, where Eric Hill talks about how much Iceman hates foreigners. He's

Arian nation. And my client says, what? Arian nation? What's that? And, and Eric Hill said,

oh, Arian nation. Uh, they, they think white people are better than everyone. They, they hate people

like us. And so Mr. Mulavi thinks he is dealing with someone who not just kills people for money

and doesn't have any qualms about doing that. Uh, he thinks he's dealing with someone who he has

inconvenienced or he's been told that he's the one who's inconvenienced, the hitman,

and that the hitman wouldn't have liked him even if they had no business together. If they just saw

each other on the street, this guy would have wanted to murder him just for how he looked.

So all of that's going on at the same time. And the FBI doesn't have a clue because they're not

controlling their informant. So, uh, what happens next?

So, uh, after those threats, Eric Hill continues texting my client, gets him to basically, well,

not agree is it still too strong of a word, but he basically says that he's set up a meeting and

they're going to go meet with Iceman. Um, and my client does go at that point, having heard that

he'll get murdered if he does do anything wrong. Um, Eric Hill has him pick him up and they,

they drive to, um, meet the Iceman in the parking lot of the Jack in the Box. And that's when we get

to the government's main evidence in the case, which is the line recording of them, uh, in,

in the car with, with Iceman. And this is the, finally Iceman is able to, it's too late, but he's

able to, uh, Eric Hill tries to get in the car and the FBI agent says, no, you can, you just wait.

We're just going to talk for a while. And Eric Hill actually has to like not get in the, he has to be

told not to get in the car at that point.

And this is the first and only face-to-face meeting with a agent and, and your client.

Yeah.

So this is after all the buildup, right? Like after all the repeated harassing calls,

all the description of this guy now is the desert storm.

Yep. All the threats, all the calls, all the text messages and, uh,

Any inculpatory quote unquote inculpatory statement is, has to be seen through that context or that lens.

This guy's in the, in the car with someone he's afraid of and who he thinks that if he doesn't say

the right thing to, he might accidentally get himself killed.

Right. If he does the wrong thing, he might not make it out of that car.

Yeah.

Getting in that car might be the last thing he does if he does the wrong thing, according to Eric Hill.

The string of text messages from Eric Hill to Mr. Malavi, uh, that morning of the meeting when

Eric Hill finally thinks he set it up, Eric Hill texts him, uh, my friend, wake up money time with

lots of exclamation points, then no response. Then call me with maybe nine exclamation points.

I'm looking at the screenshots now. Then he starts taking in all caps. He is going to leave town.

Let's go meet him. If not, I can't help you. All caps, no responses from my client.

Then, uh, Ali, who's the, in the story is this person who facilitates the hit man with the cartel.

It's not really important, but he's, he's just part of the people who will kill you.

If you do something wrong, Ali is angry at me in all caps. And then please call finally a response

from my client. And what is it? I don't want meat. Wow. That's the evidence that the government is,

is allowing to go to the jury on this case. This is the day of the day of the meeting,

right? He says, I don't want to meet. That is the day of the meeting. I don't want meat.

After which the government argued to the jury that he definitely did want meat. So that's,

I mean, that's what we're working with here. And so that's the context that the meeting takes place

in. Now the meeting is, is long on, I'll just give you the highlights since it's already a long story.

It basically, Mr. Malavi gets through about half of it without feeling like he has to say what the

agent wants him to say. Um, the agent once again is, has a pretty nice tone as far, as far as nice

could be in that context. But again, the agent did not know what force had been put behind his words

without his knowledge. And so Mr. Malavi actually gets in the car and one of the first, uh, the ice

man says like, well, what do you want done? You know, I, you tell me what work you want done and I do

it. So I could do a number of things. I can snatch him up. I can kill him. I can, uh, get you a trophy

if you want, if you want to keep a finger or something like that. Uh, what do you want? You got to tell me.

Out of my client's mouth. Well, I don't want to kill him. I don't want to kill him. Okay. Not a bad

start for me. Now they then work on him for like 40 minutes, but at some point in that car, and we

just, this is, we had to own this in front of the jury. Mr. Malavi starts making terrible statements.

He does not see a way out of this situation. He's been told that if he tries to get out of it,

terrible things are going to happen, including his own murder or possibly his family's. Uh, and he makes the

decision that in order to survive that car, he needs to tell this guy the things he wants to hear.

And we had to have a really sort of heart to heart talk with Mr. Malavi about some of the things that

he went on to say in that meeting. Um, because once he decided to sound like the person he thought

the hit man would want to be talking to, he said some things that I knew the jury was not going to

react well to. Um, he talked about, you know, how this could happen. And he, he gave information

about, uh, uh, the guy's family or where they, you know, maybe could be surveilled, um, and kind of

laughed about it at a few points. And we asked him about this and he gave kind of a very, to me,

real explanation. And he said, look, I don't know how hit men behave, but I thought that I was going to

die if he smelled anything fishy. And I had already tried to like get out of this and been told that I'd

inconvenienced him and that he hated me. So when I decided to say those things, I was thinking of

every movie that I've seen about a gangster. And I just kind of tried to play that part of, of a

terrible person, of a terrible gangster who didn't care about doing any of these things or hurting

people. And you can really, once he tells you that you can really hear it when you re-listen to it,

when I re-listen to it, you can almost hear the sort of scripted, you know, almost comic, uh, laughter.

Is there like any slang or like, cause he, cause he speaks with an, it's not as English as in his

first language. So now is he sort of on, sort of taking on this dialogue of, you know, like from,

from movies or is there like a particular sentence that stands out in your mind?

Well, so I can't think of any, any slang where I, I, I know what you're saying. Uh, no, I can't

think of anything like that, but I will tell you one moment that I thought, like Joe Pesci, like you

talking to me, you talking, you talking to me, but no, um, but here's one moment that, uh, we thought

was striking and that I, we were able, I think to make pretty good hay out of in front of the jury.

So one of the things that the government says in cases like this, and, and they did here as well,

is they'll try and get someone to go as far as possible, uh, with what they want to do, because

then they want to argue in front of the jury. Like, you know how we know they were serious. Look how

far they were willing to go. Look at the things they were willing to approve. They didn't just say

like, Hey, do what you're going to do. And if I get my gas station back, fine. No, they were,

they specifically said, cut off his hands, cut off his nose, make him feel pain. I want him to burn

alive. Mr. Malavi didn't say any of those things just as examples that they want them to say that.

And so they want it to be serious. So at one point the FBI agent says, Hey, is, um, you know,

is there any, is there anyone else or actually, I don't want to get this wrong. I can't remember

if it was Mr. Malavi or the agent who brought up a second job. I want it, you know, I may have a

second job for you if this goes well. And it may have even been Mr. Malavi who brought it up like

that at deep in the conversation, which at first sounds extremely bad for us, right? He's bringing

up a second that nobody asked him to. He didn't have to do that. We knew the government was going to

say that. Um, but what happens afterwards is almost, is almost funny. Um, he said, the Iceman says,

Oh yeah. It was second job. Tell me about that. And Mr. Malavi says, I got, I, there's this Indian

lawyer. I have an Indian lawyer and he screwed me. I hate him. And, uh, you know, if this job goes

well, we'll be able to, maybe that'll be another job for you. Like sort of, I'm trying to sound like

he's big time or something. Oh, like dangling another job out for, um, Iceman. Yeah. Another

job. If this guy, if he goes to the gas station, but this might be like a regular thing here.

Government's thinking that's great. I'm sure. Yeah. But here's what happens next. Iceman thinks

that's great. He says, Oh, right. Definitely. That sounds great. What's his name? My client goes,

Oh, I don't know. He says he doesn't know the name of the lawyer that screwed him over so badly.

Who he once killed. Yeah. I don't know his name. And then Iceman goes, well, how do you want it done?

What do you want done to this Indian lawyer? My client goes, uh, same way, which makes no sense

because same way would have been have him sign his gas station over. I don't know his name. And you

would like the other guy, even though the situations have nothing to do with each other. So, you know,

the fast forward to trial, they government brought it up as this big deal on direct. He wanted someone

else killed. We got into the details on cross and I was able to ask Iceman in front of the jury,

you know, in your line of work, you know, you've got more experience than I do talking to people who

want other people killed. Uh, generally when somebody asks to have someone killed, would you say they

know that person's name? And he had to say, yeah, I mean, what else was he going to say? He said,

yes. So it was just, it turned to, we took something that was bad and tried to turn it into sort of a

ridiculous moment. We tried to turn it into evidence that he actually wasn't being truthful when he said

he wanted these things, but certainly those were the worst facts in the case that we were going to have

to confront at trial. Oh, so there, there's one more moment in the car, which could be important.

And it's that Eric Hill on the way to the meeting, uh, makes Mr. Malavi go to a bank and take out

$500, uh, from Mr. Malavi's bank account. And then tells Mr. Malavi, he has to give the hitman

$500. And you, you hear it on the recording on, and Mr. Malavi repeatedly, as he's giving him the

money, he's been told he must give him the money. And he's been told previously that this guy has

spent money because he traveled down here. He spent money on food and drink and traveling and that he's

been inconvenienced. Mr. Malavi, after this whole meeting gives the hitman the money and is very

careful to say, this is for food and drink. This is for food and drink. We're not agreeing. It's just

for, even if we don't do anything, I want you to have this because of your inconvenience. He's still

trying to push him off and say, Hey, you know, Mr. Hitman, you don't have to murder me, uh, because

I'm, I'm making you whole here, but I'm not agreeing to anything. Does he get arrested right there or?

No, he doesn't. They let him go. They let him go because they want, they want him on the hook more.

They want to give him a few days. Um, and the FBI agent on the stand kept, kept saying, I try and

give people as many outs as possible. I give them every off ramp, but they kept using this phrase

off ramp. I want them to be able to get off any off ramp they can to make sure that, you know,

we're not, we're getting someone who really wants to do this and he never took an off ramp. So in the

few days after that, um, the FBI calls Mr. Malavi and says, Hey, I got pictures of, uh, you know,

the victim that looks like I might, I want to do the work this weekend. And Mr. Malavi actually

keeps trying to push him off, uh, which we told the jury was him trying to buy time to try and find

a way out of this. Every time the Hitman wants to do the job, Mr. Malavi says, Oh, you got to wait

until I'm trying to get out of town for this. I won't be able to get out of town for a couple of

weeks. Uh, you'll have to wait until then. And the Hitman wants to move on to his next assignment

as an FBI officer. So there is a one final conversation where the FBI agent gives him a

chance to, uh, asks him point blank. Do we, or do you still want me to move forward with the work?

And Mr. Malavi says, yeah. And we had to deal with that at trial. That was clearly the other bad

fact. And the case is that he did not recant this. Um, even though we were saying he wanted to call

the police or he wanted the police involved in the end, he did not at the, at the time when you would

have had to involve the police to stop whatever is actually happening. Uh, he, he simply was not able

to. And the way that we ended up dealing with it is by saying, look, he wanted to, he thought that

his family was going to die. And in, when the moment came, when he would have had to report it

to stop any violence, he simply was too afraid to. And we had to hope that the jury stayed with us

there. So they just, they show up to his house and arrest Mr. Malavi. No, they don't show up to his

house. They wanted to get him out in the open for some reason. So they had Iceman say, Hey, I need to

meet with you or something. Um, and Mr. Malavi went to the location, um, and was arrested there,

uh, was arrested with a handheld recorder on his person. Once again, trying to record, uh, his

interaction with the, uh, cartel hitman, but was, was arrested at that point. Um, he's brought to the

station. He, uh, invokes at that point. And that's when we get on the case.

Wow. So he invokes, that's pretty good.

Well, actually he described it in a really funny way at trial. Um, yeah, we were happy that he

invoked, obviously, although quite frankly, he probably would have said exactly what I told you

in this specific case.

Let's just be clear. He evoked his right to remain silent. That's what we mean.

Yeah. He, he said he wanted a lawyer, but the way he described it at trial, because they can actually,

back when I was in Florida, when someone invoked their right to remain silent, you could, the

prosecution could not comment on their silence in trial. And, uh, in federal court, I no longer have

the benefit of that rule. So in trial, the state was actually, or the government was able to cross

examine him on how he did not say any of this to the police. And he described it in just absolutely

the best, most human way I could have ever hoped for. Um, the prosecutor said, well, you didn't tell

any of this to the, uh, agents when they arrested you. And he said, uh, yes, you're right. I was with

your agent who was sitting over there at the table and he, uh, he had a form and he asked me,

he said that I had the right to speak to a lawyer, uh, before I spoke to him. And I thought that might

be a good idea. So I said, yes, please. I said, yes, thank you. That's very nice of you. And so I

did ask for that lawyer. And it was just, it just was so matter of fact and perfect. I'll never forget

it.

So, uh, all right. So, I mean, now, now you're on the case, right? And, uh, this is the story you

have. It looks like we've heard, um, all of the evidence for the most part. Uh, what, what's the

2% that you do though? Cause we, this is night, this is 98%, right? That you've told us.

Well, like it was gathering all the recordings and organizing everything. But like I said, if we

needed to do that, we could have had it done in two days. It was, it was the waiting on the,

the phone records. So we, we actually got the raw data to prove up the number of actual,

with not all the missed calls and the frequency of calls were on the phones. And so we felt like

we needed that. We also spent a lot of time trying to get recordings off of that handheld recorder.

I mentioned that he was arrested with, uh, we thought that was going to have a lot more recordings on

it. And, um, another very human event in the case, uh, we spent months getting it out of the FBI's

custody and getting the recordings from it. And it was 70 hours of nothing of air. And the best we can

tell Mr. Malavi just didn't use the recorder. Right. After all that, David can definitely relate.

It's funny now that he got acquitted, but man, at the time it was not great.

You're like, no.

So then are we ready for, to talk about the trial thing? Cause we, yeah, I think we're up at trial and

there was some pre-trial motions. Um, some very nerve wracking pre-trial motions. The government

moved to preclude us from asserting an entrapment defense and moved to exclude the Chili's recording

in its entirety.

Oh no. On the eve of trial, the government is trying to prevent the jury from considering

entrapment as a defense and prevent the jurors from hearing exculpatory evidence of the recorded

Chili's conversation. What on earth is Mr. Malavi going to do? Make sure you tune in next week to

hear part two of FBI Federal Bureau of Instigation to find out whether our awesome public defender,

Mike is able to successfully navigate the jury trial and save Mr. Malavi from spending the

remainder of his life in prison.

And now ANG brings to you Part 2 of FBI Federal Bureau Of Instigation, picking up right where we left off from last week with Part 1. Enjoy.

Here at Another Not Guilty, we appreciate your support. Don't forget to subscribe or follow us. And please visit our website at anothernotguiltypod.com.

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Now, without further ado, here's this week's episode of Another Not Guilty.

I sort of breathe a sigh of relief. We're, and I'm waiting for him to, uh, he's told he can step down from the witness stand.

And we're waiting for him to come back over. And I'm not looking, I'm looking down at my notes and all of a sudden I hear the prosecutor yell,

"Mr. Malavi!"

And I look up, and my client is over there at the jury box chatting with the jury.

And the judge looks at him and says, "What did you say to the jury?"

And he doesn't even, he doesn't hear the jury. He's hard of hearing, too. So he said, "What?"

And my co-counselor yells in his ear, "What did you say to the jury?"

Welcome to Another Not Guilty. I'm David Moore, here, along with my fellow public defenders, presenting to you the untold stories of the criminal justice system.

Objection! That assumes there's justice in the system, which there ain't. I prefer calling it the American criminal system.

These stories are about the not-guilty as public defenders get on a daily basis in an unjust criminal system.

So, Mike, what is the entrapment defense? What do you have to prove for it to qualify as entrapment?

It varies between the circuits. But in the Fifth Circuit, entrapment is a subjective defense,

meaning that it's about whether that individual person was entrapped, not some objective standard

about whether a reasonable person would be entrapped. But to say it sort of as succinctly as possible,

it's when the government pressures or induces someone to commit a crime that they would not have otherwise been predisposed to commit themselves,

but for the improper pressure or inducement. And it has to be by a government agent who presents the plan to the defendant.

Okay. And so a government agent has to do the inducement, though. So in this case, Eric Hill is not quite...

Is he considered a government agent? Or is he a guy who's trying to get picked up by the government? Or what's his relationship with the government here?

Yeah. You've hit upon the subject of the government's motion to preclude us from asserting an entrapment defense.

They basically say in their motion that we shouldn't be allowed to even attempt this because there's no evidence we can offer that Eric Hill is a government agent.

And so they had some case law, which when I first looked at their motion, I honestly, I'm not exaggerating, started seeing double.

And it has never happened to me in the eight years that I've been a public defender.

I read this case that they put in their motion, and I thought to myself, we are absolutely dead.

It was a case about a civilian who was trying to curry favor with the government, who told someone about a crime they could commit.

And once the person agreed they wanted to commit that crime, the civilian went and told the...

And they put undue pressure on that person, but it was before they went to the government.

And so after the person agreed, even though they'd been threatened, the informant went to the government and got the government involved.

And then the case proceeded as a government case, and the court said that can't be entrapment because when the pressure happened, the person wasn't a government agent.

And at first glance, it just, in my adult trial prep brain that had been going at 200 miles an hour for weeks and months at that point, it looked like it was totally on point.

Luckily, we were able to differentiate our situation and say, no, Eric Hill presented Mr. Malavi with a legal idea, with no pressure to meet with a real estate person, and then went to the FBI.

And the FBI told him, directed him, and instructed Eric Hill to go back and engage with Mr. Malavi.

And it was only after that point that he presented the illegal activities to Mr. Malavi and presented the threats to Mr. Malavi.

And so he made those threats as a government agent at that point.

And so we went, we were incredibly nervous about what the judge might say about that because, of course, what we were going to, what were we going to say at trial, if not that this was an entrapment defense, we would have been left with a recording of him agreeing to kill someone.

So by the time that they met at Chili's, the government had been involved and had instructed Mr. Hill to go to Chili's, which is where government county employees go.

Exactly. And we were able, with the help of our crack appellate team here, we were able to find great case law, which was eventually incorporated into the jury instruction that said, I actually have the jury instruction in front of me.

Part of the entrapment instruction that went to the jury was an informer may be an agent of the government, even if its officials do not directly orchestrate his activities.

Law enforcement authorities may not make promises to private citizen informants in exchange for their efforts and then secure insulation from charges of entrapment simply by leaving the informers to their own devices.

Yeah, wow. That's great language.

Yeah, right. And that's like, thank God for appellate lawyers, right? You can just go on and find these gems.

You make the case law or jury instruction sound like the gospel right there. It's like you're reading from the Bible or something.

Like, well, it was to me during this trial.

Is it is it stressful that like for you to put on your defense, you have to argue it through a judge first and do case law like the prosecution never has this type of stress on presenting their case?

You know, like, no, let me tell you about the prosecution and stress that the other motion the prosecution filed was a motion to exclude the Chili's recording.

Yeah, where what's there on for that?

The grounds were that I wouldn't tell them how I got it.

Whoa, which I would not.

I turned it over to them, unedited in exactly the form that I intended to enter it into the record at trial.

I even told them how I would authenticate it, which is by most likely if I said if I were going to get it in,

it would probably have to be by either asking Eric Hill about it and him agreeing or by Mr.

Malavi testifying that that was a fair and accurate representation of the conversation that he personally observed because he participated in it,

which is a standard way for authenticating a recording of that sort.

And the government was just so upset that I would not tell them my personal confidential chain of custody that led to me having it on my computer,

that they filed a motion, which was just three pages with no case law whatsoever.

What would happen to a defense attorney if they just filed motions without case law?

And we were worried they were going to win it, even though it had no case law in it, because like you say, who knows?

So the government. All right. So your your client's induced by the government to commit this crime.

The government moves to exclude the defense of entrapment and then they move to exclude evidence of entrapment.

Yep. But it's funny because I can think about this right now all the time when we tried it when I try to exclude,

you know, when I make these Hail Mary exclusion motions for the government's best evidence, you know, what do they always say to me?

And that's an interesting point. But it goes to the weight, not the admissibility. Right.

Like if you want to challenge that this has been doctored, if you want to be challenged that this is the chain of custody is fraudulent or whatever else,

then put on an expert or put somebody on or or challenge it when you cross examine the authenticator or the person that heard the conversation.

That's all I get from the judges that I appear. And it's just so funny to me that the you know,

the tables are switched here and they're making this kind of Hail Mary motion that instead of actually attacking the content or the the the weight of the of the evidence,

they just don't want to deal with it.

Well, and what was especially poignant, I thought, was their own agent was there.

Oh, yeah, exactly.

He knew whether it was what did I do, doctor? Did I come up with this conversation?

Did I have it like made somewhere? Did I splice it together?

They have someone who could accuse me of that if it was an inaccurate conversation in some way.

And they were never able to do that because not even Eric Hill would say, you know, that's not my voice or, oh, he broke it.

He edited or something like my guy could edit. He couldn't even turn a recorder on the right way, you know, but they wouldn't even say that.

So I got up at the motion. I said, they're trying to exclude this with no case law.

They can't even get up here and tell you that it's not accurate.

And luckily, with both of those motions, although we lost sleep over both of them,

the judge dismissed them pretty quickly and said, it sounds like an issue for the jury.

And she on the recording, she said, have you given them exactly the recording that you receive?

I said, yes, absolutely. And she said, OK, that's fine.

And that was that on those issues. Poof, gone.

OK, cool. So let's talk about the jury trial.

And are we there? We there? I think we're there.

I think we're here. OK, so opening statements, right?

How's that? How's that go? Opening statements goes pretty much how you'd expect hearing the story.

No surprises in opening. Government gives their opening, says you're going to hear how he agreed to it.

He said all this bad stuff. They they do try and draw the sting from Eric Hill.

They say things like Eric Hill is going to bring a lot of baggage to this case.

You're going to hear about some bad stuff he did in the past and you're going to have to evaluate that yourselves.

They sort of left it pretty vague at the beginning, which I probably would have done the same at that point.

So they mentioned it. They didn't want to look like they were hiding from it.

But they also didn't go into too much detail.

We had a lot to fit into an opening statement.

And, you know, that's hard.

I didn't give the opening. It was my trial partner.

He gave a great opening and said the government said this.

It was going to be a case about anger and about what anger can make someone do.

We said it was a case about how the government is supposed to be trying to catch criminals, not create them.

And that you were going to hear about how a rogue government informant absolutely duped the FBI who were not supervising him and tricked an innocent 70 year old man into feeling like he had to say some things that you are not going to like hearing.

But he didn't like saying them either.

We knew the government was going to take the first half of this trial, and we were just wanting the opening statement to get the jury to know, hey, stick with us to the end here, because we're going to give you some things that you are that are going to make you rethink what the government is saying.

I feel like we skipped over voir dire and jury selection.

Yeah, the judge gave us 20 minutes aside for jury selection.

And I'll say I came from Miami in Florida, and Miami jurors are great.

If there are any Miami jurors listening, thank you for all the good times.

Texas jurors, I did not know what to expect, right?

All I know is Texas is a red state, or at least it has been in the past.

You know, it's known to be a more conservative state.

I've got a Middle Eastern client.

We've got – he's from Iran.

Who am I going to get here on this jury panel?

And I don't know if it was just a fluke or not, but I felt like we got a great panel.

We even had one lady stand up at one time without knowing any of the facts of the case.

And she said something like – we were asking about, is it possible somebody could misunderstand something, you know, even when it's something that's important?

Some sort of question like that.

And this woman stood up without knowing anything about Mr. Malavi, and she said, well, what if someone is English as a second language?

I mean, you could really be led into saying something that you don't really mean or not understand it in a full way.

And what's being done to make sure that that's not happening?

And we were like, have you been sent from heaven to teach this jury what we're going to be talking about?

So that was nice.

But other than that, we just kind of – we picked a jury the best we could, and I didn't think it was too eventful.

Okay.

So opening statements you have – your partner gives it, trying to condense the detail, the level of detail of this case leading up to the events in that Jack in the Box.

In that fateful Jack in the Box parking lot.

All right.

You can tell it's in the suburbs because it's a Chili's, it's a Jack in the Box, you know.

Yeah.

All these great chains that are the scenes of our case.

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Okay.

So how's the evidence roll out for the government then?

So it starts kind of rocky for us.

They call the victim first, if I'm recalling that correctly.

And, you know, the victim doesn't really matter that much in this case.

They've just got to kind of establish that he's a human being who owned a gas station and that gas station would have been in and affecting interstate commerce.

But, you know, they, they rung it for all it was worth as far as trying to humanize him and try and get the jury to know that, you know, there was a real person here that, in their view, somebody thought they were trying to kill.

You know, when you said victim, I was in my head, I'm like, who's the victim?

It didn't even happen to me.

Because, I mean, but for them telling him about this, like this guy had no idea that this was ever, you know, right?

Like, I mean, it's not like this guy's life was actually impacted because I'm sure the government is the only person that told him, hey, this guy was trying to kill you, right?

Yeah.

I mean, they basically, the FBI in connection with their agent, like they were the ones that scared the shit out of this guy and traumatized him.

I mean, they did that.

You're right.

He would, he literally would have never known and his life was not actually in danger ever.

Yeah.

When did they, when did they tell him?

Did they tell him prior to this or did they tell him on the stand while he was testifying that, did you know this guy right here wanted to kill you?

No, I mean, they, they called him and they, they let, after Mr. Malavi had been arrested, they called him and said, and explained what had, in their view, happened.

And the only thing we got out on, on cross, I mean, we hardly did anything on cross, but he had said one thing on direct.

The government said something like, and how did you feel when you got this news?

And he was like, well, I was just totally shocked.

I could not believe that I was hearing this.

And so my co-counsel who was doing that cross got up and said, okay, you've known Mr. Malavi for 30 years, right?

And you, even through, you've had disputes with them and all of that, right?

But even after all of that, when you heard that the FBI was saying he did this, you were completely shocked and didn't believe it.

Okay, cool.

So then, who testified next then?

Next, they called the DEA handler, who wasn't directly related to the case, but he sort of transferred all of this over to the FBI.

And he also was not too relevant to anything, except for that he wanted to claim for the first time on the stand that he had a conversation with Eric Hill.

And he told Eric Hill that he was totally off the hook for all the bad stuff he had done and definitely didn't need to do anything else, which was actually directly contradictory to a Brady notice that I'd been given by the government.

The government actually was pretty good about Brady in this case for the informant issue and gave me a Brady notice that said, Eric Hill has never been told that he was cleared from the past cases.

And yet here's this agent saying, no, I talked to him and I told him he was all good to go.

So that sort of stopped the trial in its tracks.

And I had to, you know, make an argument that I'd basically been provided false Brady evidence if this testimony was true.

And we told the jury an opening statement that Eric Hill was not told that he was off the hook.

It was a big part of our case.

We made that strategic decision specifically because of the government's Brady notice.

And now, you know, we look, we now lacked credibility on that issue because the government had now changed their testimony through another government agent.

So that was, that was not a great moment either.

But what ended up happening is the government said, look, I didn't know that this agent believed he said that.

But what I can tell you is that my understanding is Eric Hill's testimony is going to be that he was never told that.

And I said, well, if that turns out to be the case, it'll limit the prejudice and could even possibly be helpful to us.

Because now, what is this agent saying?

Eric Hill, of all people, would remember that.

Yeah.

And now this agent is trying to say that he, he told him he was off the hook.

And that's the thing that Eric Hill forgets.

No chance.

So it was just this weird thing where a witness that didn't, wasn't really at the center of anything, sort of overstepped in how he wanted to bolster the government's case.

And just made things difficult for everyone.

It just, I mean, we've had so many episodes, right, where cops just kind of just get on there or, you know, law enforcement gets up there and they just wing it.

And they just randomly, with no coordination, they just, they're going to lie or embellish or bolster testimony because they think it might help.

And then how's the judge rule?

The judge basically said, you know, there's not a violation because they didn't know about it.

And it sounds like the informant's going to give you what you want anyway.

So let's see if that happens.

Okay.

He just kind of tabled it.

So, all right.

So what's the next material witness, you think, like in the government's case?

So really the only two remaining witnesses that were big deals were Hill himself and Iceman, the FBI agent.

The government did a pretty good job drawing the sting from all of the terrible statements on the Chili's recording.

And of course, as I'm sure you could have guessed, after fighting tooth and nail to not let the jury ever know the Chili's recording had been made, they then, of course, introduced it as their own evidence.

Right, right.

To make it look like we're not hiding anything.

Here's just more evidence that just happened not to be recorded by us that got recorded by the defendant.

So they're going through it, so they're going through it basically in their direct.

And the prosecutor's keeping a pretty tight leash on the informant.

At one point, there's a pretty funny moment where they're going through the timeline, and the prosecutor's asking questions about, why did you say this and why did you say that?

And Eric Hill gives some kind of answer, and he stops.

The prosecutor's looking down at his notes to see what question he wants to ask next.

Eric Hill, out of the blue, goes, hey, can I say something?

The prosecutor immediately goes, no.

Thank you, prosecutor, for showing this jury exactly what you think of this witness.

Just a fun little moment for us.

So he keeps going, and yet the only thing that was unexpected that we were able to really make hay of for the Eric Hill cross is when they go through the Chili's recording, the prosecutor goes through almost every single one of the terrible statements that Eric Hill makes.

And basically says, all right, so you say here that the guy's a killer, and he'll kill you in a second, and blah, blah, blah.

Hey, why did you say that?

And Eric Hill's response to basically all of those questions is, you know, it's just two guys joking around.

Ooh, locker room talk, you know?

Yeah.

Hanging with my boys.

Jury didn't like that answer any of the times he gave it.

They did not respond well to him, ever.

Did they, like, groan?

What do you mean they didn't respond well?

Like, an audible reaction?

No, no audible reactions, but I was told by observers of the trial that their body language threw out.

His testimony and end of my cross became sort of increasingly dismissive of him.

Nothing audible, though.

Okay.

He's like, you know, we just boys.

We call each other El Señor.

You know.

Yeah.

I mean, that was the tone of it.

And it was, we, I was just sort of like, we just sat there with our, you know, mouths hanging open.

I just really, like, this is the best that he could do.

But at the same time, it's like, I mean, it's hard to come back from these states.

I mean, what else are you going to, what are you going to say about telling someone their whole family's going to die?

But what the government, I thought this was one of the, they put on a pretty good trial, actually, as far as the evidence they had.

But I thought there was, there were a couple of big mistakes.

And one of them, they gave us an opening.

They're going through all these bad statements.

And then when they get to the statement, the really bad one, where he says, don't you want to see your kids' children?

Where he really, like, drives that knife in.

And Mr. Malavi's a family man, too.

I haven't mentioned that.

I've told you he's had kids.

But he's really family-centric.

And anyone, including Eric Hill, would have known that.

So this is particularly vicious of Mr. Hill to try and get this plan back on track.

And he knows that.

That when they get right before that line, and I'm sitting there thinking, all right, now they're going to ask him, is this guy going to say he was just joking around when he said the guy's, he was never going to meet his grandkids?

Prosecutor gets to it, just skips over it.

So he doesn't play it for the jury?

No.

So he leaves it for you.

Wow, that seems pretty...

Yeah, he just said, I'm going to take away everything but the crown jewel of your cross-examination.

Oh, wow.

So I had something, right?

And really, I mean, we draw this thing for a reason, right?

We bring up the bad facts first, whether we're prosecution or defense, because this is a tried and true technique.

And they did it real well, except for this point.

Because when I got up to cross, like, did I point him out in a different tone, an angry tone instead of an understanding one?

Yeah.

Yes, I did.

I put on a show.

It was fine.

The jury responded to it.

But it didn't add anything because it had all really been out there already, except for them, you know, getting to hear it again.

But I was able to get some drama back from all of that because he had skipped over telling the guy that he was going to get murdered and not see his grandchildren.

So that's the point I was able to dwell on in cross-examination.

What was his response to that part of the tape?

Was that also, like, locker room talk also?

Or what did he say?

Oh, yeah.

Just joking.

This is how we joked.

Me and my buddy, Mr. Mulavi.

Like, the guy that chewed me out for smoking weed.

We were chillies.

It was just joking.

Yeah.

And I just, all I could, I mean, maybe other people would have better ideas for how to handle this.

I just, I paused incredulously.

I just let it hang in the courtroom.

And then I, after as long as I could wait, I just said, just joking about him getting murdered and never seeing his grandkids again.

And he looked at me and just said, yeah.

Okay.

So any other highlights with the cross-examination or should we move on to the Iceman?

You know, you might expect that after a really long cross-examination, generally, I don't know, probably 95% of cross-examination afterwards, the government does a redirect.

And for this one, probably wisely on their behalf at this point.

When I was done with my cross, the judge said, okay, government, any redirect?

And just, nope.

Couldn't have been more obvious about just sort of disowning him.

What else could they do?

So, okay.

So then, are we ready for Iceman then?

Is he?

I think we're ready for Iceman.

There's nothing left but Iceman before my case in chief.

All right.

All right, Maverick.

Tell us all about it.

Take us away.

So, I mean, we've been talking for a couple hours now and Maverick's finally now mentioned.

Iceman, I mean, really?

It's like little rain and fruit there, you know?

I just talked about theory in the lead, right?

I mean, are you the goose?

I mean, I don't know.

So, all right.

I bet you've had this experience before where you've got a whole cross planned and you're going to point out all a bunch of inconsistencies, little ones here and there, and they're going to add up to something big.

You've got a whole plan for cross, and then once in a while, a witness gets on the stand and you just listen to him and you just think, man, I can't do this cross.

This guy is just believable, and I'm not going to be able to convince the jury otherwise.

And like I said before, most of our case did not attack the FBI for the strategic reasons of just wanting them to have to hate Eric Hill and be able to focus on our evidence.

But, man, I was still going to ask at least some things.

And Iceman, this guy, his background, it was even more heroic sounding than we would have imagined.

His whole job is to be an undercover for when murder-for-hire plots are uncovered.

Wow.

So he has just, he has been inserted in absolutely the most heinous, dangerous situations that America has to offer.

He has saved the lives of federal judges when people wanted to take contracts out on them.

And he does so with a tone when he's talking about it like it's nothing.

Like I just go to work and save people's lives and not in the way that cops do, like where it's annoying.

It was like he had us believing at council table.

And sometimes you just have to say, look, if I as a defense attorney am buying this, there is no way in hell that I can get up there and try and get this jury who are not defense attorneys to change their mind about this guy in the slightest way.

Well, what were you trying to prove with them?

I mean, we're really not contesting his part of, of the story, you know, factually speaking, he did everything right and it's recorded and like, we're not, what's the, like, what were you trying, what were you hoping to prove with it?

So here's what we did with it.

It actually turned into the most effective advocacy in the trial, other than Mr. Malavi's presentation himself.

So this guy presented himself as someone who does things right.

And it actually also came out on Directly Learned for the first time.

Not only does he do this as a job, but he's also like the undercover trainer and mentor for all the new undercovers.

He selects them, he mentors them, he trains them in what to do.

And he, even on, on direct examination in his description of his job, he said, I train the undercovers on how to handle themselves in these situations and avoid potential entrapment issues.

And so I kind of put that in my back pocket and said, okay, this guy trains people on how to avoid entrapment.

And he also said some things on direct about how he wants to get the informants out of there as soon as possible, because he wants to be the one that's in control of the information.

So we took those two things and I basically took him through all of what Eric Hill did, which of course he knew about beforehand, but he hadn't been really asked about it.

Um, and I just basically went through each thing Eric Hill did and said, like, for instance, I said, you know, your instructions to Eric Hill, when he said the old man wants to meet again, you said that, uh, just let him know, just let Mr. Malavi know that, uh, if he wants to meet with me, fine.

And if he doesn't no problem, those were your instructions, right?

Yes.

Those are my instructions.

And so I would then take that and ask things like, so with these specific instructions in mind, did you authorize Eric Hill, uh, to say about you, about Iceman, uh, something like quote, he'll like literally kill us.

If we do anything wrong, he'll kill me.

He'll kill you.

I'm telling you, you don't fuck with this guy.

Is that what you told him to say?

No, I didn't tell him to say that.

Uh, and then to follow up with it, with a string of question each time and say, in fact, that's not something you would say to a target period, right?

No, I wouldn't say that.

And it's not something that you would train your undercovers to say in these circumstances, would you as a trainer?

No, I wouldn't train them to do that.

Uh, and then I would even, he was with me to such an extent that at several points, I even said things like, so clearly it's not following.

He was not following your instructions at that point when he said that answer correct.

So he was strikingly upfront with what he thought about what Eric Hill, um, had done.

And so I just went through every question, uh, and did every statement and everything that Eric Hill did that was terrible.

You know, would you have an undercover text someone in all caps yelling at them that they have to do this?

No, I wouldn't do that.

And then, uh, and then it's at some point saying, and you wouldn't do this because one of your jobs is to not entrap innocent people.

And he said, yes, that's one, that's part of it.

That's why we don't do these things.

That sounds like, I mean, that's like, that's like some stellar cross-examination there.

Um, and I'll say this actually, I skipped over a little, cause I skipped right to my cross.

Cause that's the fun part for me, but I'll say this.

The government's direct of Iceman was the best direct I have ever seen a prosecutor do.

I mean, we knew that they were going to go through the whole conversation, but we felt like behind in the case when they were, I mean, the prosecutor that handled it had a, had done a PowerPoint for the whole thing.

And it was on his game and with tone, it was, um, he was sort of incredulous, but not annoying or condescending.

And he just sort of went through every statement and would stop it after every time Mr. Malavi said something bad and just say, all right, I've stopped here.

So what's going on here?

Uh, when he, when he says, it's okay, you can kill him if you have to what's happening there just to drive it home and drive it home and drive it home.

And when that direct was done, I mean, there, it was like the air had been let out of the courtroom for the defense.

I mean, we really felt like, wow, that was, they scored there.

And so when we came back for the cross, that's the position we were in.

And we sort of had to climb out question by question, but because of those answers that he gave by the time the cross was done,

I went back to council table and without even saying anything, I mean, both co-council and I just felt like, well, we're back.

We came back from it.

Like we're back to even if not ahead after those sort of bombshell moments.

After Iceman, does the government, they rest then, right?

They're done.

That's their case.

Yeah.

Okay.

At this time, I'd like to thank and acknowledge our newest member to the A&G Patreon program, Bill Clemens, for his support to the cause.

If you too would like to become a member and receive a shout out on an episode and or the unedited version,

which usually contains extra facts, analysis, and banter, then please visit our website at anothernotguiltypod.com and click on the Patreon link.

Thank you.

So now it's time for you to put on your case, right?

Yes, it is.

All right.

And then you're going to call some – who are you calling?

Are you calling your client and anybody else?

So we did end up calling our client.

Before that, we called his son to provide the context for how the information would have gotten to Eric Hill.

And he testified amazingly.

He was so nervous before him, young guy, young guy, and felt so guilty over all this.

I mean, you can imagine you're unknowingly saying something to a friend's dad, and then this happens.

And it wasn't his fault at all, but you can imagine how someone would feel.

Yeah.

And then having to testify in federal court about it.

I mean, it was just terrible.

His whole family for the whole year was just unbelievably sad to see.

So his son testified about his relationship with Eric Hill and some sort of racist stuff against Middle Easterners that his son had overheard.

The judge wouldn't let us get into all of it, unfortunately, but we got enough of it in.

And then we called the client's brother.

And the client's brother we called because my client, in the midst of all this, had gone to him and said,

Can I borrow your handheld recorder?

And even though nothing had eventually been recovered on the recorder, we still thought that there was some value to our defense.

Just the fact that he was making efforts to get recording devices.

You'd say if you're, there's consciousness of innocence.

If you're trying to record things, even if you fail at it, I mean, you don't try and record things if you're guilty, if you're doing the wrong thing.

And the judge actually, we let in a state of mind statements, our client saying to the brother, I need this recorder because somebody is threatening my family.

Wow.

So that was good.

Yeah.

And there was really no cross-examination that was effective against those two witnesses.

I think the government thought that I was going to call them as character witnesses.

So they did their kind of character witness cross where they go through all the bad things he said.

And then their last question is, so you don't really know your brother that well, do you?

But it didn't really apply to the information that I had supplied on direct.

So their answers were just kind of like, but I, yes, I do know my brother and I'm just here to say that other stuff.

Like what everyone is kind of like, what's going on?

Yeah.

Like it's just like a kind of a misfire.

And so after those sort of, we laid the groundwork there.

Then it was time for the main event.

And it was time for Mr. Malavi to testify.

And he was up on the stand for a very long time.

It was very emotional testimony.

He broke down at a couple points, but he told his story well.

I have one of my old clinical professors from the criminal defense clinic, Abby Smith,

is pretty much the person who taught me criminal defense back before I went to Miami.

And she had something that she told us that your clients sometimes when they testify,

they can be at their best or at their worst and that it's hard to predict which they're going to be.

And I have seen that.

I've seen it both ways.

I've had people that I thought were going to be great, and then they're just at their worst.

And I thought, wow, I just did not see that comment.

And I've had people that were just difficult to talk to through the entire representation.

And I thought, man, the jury's not going to like these people, but they want to testify.

And then they get up there, and it's just this beautiful testimony.

And so I think about that line a lot, and he was really at his best through the whole testimony.

And the direct went well.

He told his story about how terrified he was.

And I sat down, and it was like, buckle up.

Yeah.

Because we did not know what was going to happen on this cross-examination.

I know.

You just got to watch and see how your client holds up.

Yeah.

And we also knew that there's something to be said for trying to protect a client, but there's

also something to be said for the jury needing to see how they hold up if they're going to

stick with you.

Right.

And so we kind of knew that I was not going to be able to protect him that much in this

particular context.

So we, and also, again, back to the not as much information in federal court, they don't

have to disclose any of their potential rebuttal evidence.

If they had found something else, they could have built it into their cross and then put it

on in rebuttal and blew us up.

And we didn't know what that was going to be, if it was anything.

We were really wondering if, because they had made a bigger deal than I thought about this

Indian lawyer on their directs.

And I sort of, my, my intuition sort of perked up a little bit and I thought they're talking

about this Indian lawyer too much.

And it just didn't sound to me like it was just the consciousness of guilt and look how

far he'll go.

And I started to wonder, do they have an Indian lawyer ready for the rebuttal case?

And I, there was nothing for us to do, but wait and see.

All right.

So tell us about the cross.

So cross-examination, he mostly, in the same way that I had drawn this, that he had drawn

the sting from all of Eric Hill's terrible statements.

I, of course, had done the same on direct.

In fact, it's really, it's actually, it's funny.

Um, so I, there was a portion, I love cross-examining my own clients on direct testimony, uh, because

I feel like there's no better way to draw the sting than to sort of fake.

Like you are.

Incredible.

Questioning them yourself as a cross-examiner.

So I would do things on cross.

Like I would say, Mr.

Malavi, uh, you give this information here about, you know, where his kids go to school.

You didn't have to do that.

Why would you do that?

If you were innocent, like you're trying to say, you know, not exactly that, but things

like that, so that some of the vitriol of cross-examination even is sort of drawn from, uh, what I knew

would be the prosecutor's presentation.

And, um, he had great answers for everything, of course.

Um, and you know, we obviously knew what the answers were beforehand, but they were his answers.

Um, and he had good answers, even for a point like that.

He said, Eric Hill had gotten that information from me when he told me it was a real estate

agent, I had no idea why he wanted it, but because he was just talking about real estate

stuff, I just, I didn't think it mattered.

And so I knew he already had it, things like this.

So he was prepared for it, but I had pretty much already cross-examined him.

And, uh, we found out after the trial that, you know, they have intercom systems in all

the courtrooms.

And, um, this is a pretty interesting trial even for federal court.

Um, and so it turned out like a lot of the other judges and their chambers and their

clerks were listening and the clerks were all, the coordinators had texted each other when

the defendant was going to testify.

Okay.

You know, listen, now it's going to be the good part.

And I got comments in the weeks after the trial from at least one of the judge referred

to it in, when asking me about the trial as, uh, the time when I cross-examined my own

client.

So it was, it was obvious to at least some people what was happening, but.

And you, so then were there any moments, any, uh, where the, where the prosecutor and it's

cross of your client, like tried to hit him with something, but your client had a great

response or like.

Two things stand out about the cross in my mind.

Okay.

One, the prosecutor at one point does basically a prosecution theory cross where he says, this

is all a lie, isn't it?

No, it's not a lie.

You came up with this with your attorney to get out of these charges.

No, I are, uh, some other question before that, like that.

And then the last question, the last question was you, uh, you concocted this story.

You came up with it with your attorney before the trial so that you would know what to say

or something very close to that.

And the client, it was very deep in the cross.

He'd been on for hours.

And my English is a second language client said, um, uh, yeah.

And there was this moment where everyone knew it, like, wasn't what he meant to say.

Everyone in the courtroom, including the prosecutor knew that this was a language issue and not

that he had just confessed.

Like you didn't have your Perry Mason moment.

You just proved to the jury that sometimes he just says yes, because people are talking

fast and he's under pressure.

So it was this strange moment that sort of proved the opposite of what the prosecutor was

trying to do.

But the other much more momentous moment was when the prosecutor asked Mr. Malavi what the

prosecutor thought were innocuous questions.

Actually, it was just leading into another section.

And he said, all right, when you got to the police station and you were under arrest, right?

Yes.

And you were in handcuffs.

You were in the, you were with the agents.

They were all around you.

Yes.

And you actually found out then, you know, agent Grant told you only at that point that,

um, Iceman wasn't actually real, that it was actually an undercover agent and there was

no Iceman.

And Mr. Malavi said immediately to that, yes.

And I was so happy to hear it.

So happy to hear it.

And the prosecutor didn't even know what he had done.

He just moved on to his next question because he was just building up to whatever next section

of Crawford was.

And so I just, I was struck by it, but the moment passed very quickly and nothing was made

of it.

And I'll jump to where it became important.

In closing, obviously we did a lot of other things in closing, but what I thought the most

powerful moment that we were able to bring up, we went through everything, is I told the

jury there was a moment in the trial that I thought was incredibly important, but that

I thought it passed too quickly and maybe not everyone caught it.

And I described again, what Mr. Malavi had said about feeling happy.

And I, I told her, I said, well, what I told them one of the worst things in the world that

can happen to a person is being arrested by a team of federal agents and being handcuffed

to a desk at a police station.

And yet in that moment, he wasn't upset because there was something worse for him.

And that something worse was the knowledge, the thought, the belief that there was someone

in the world who he had pissed off, who was dangerous and who had all the information they

needed about his family.

And so while any of us in that moment being arrested by federal agents would have been

the worst moment in the world, he was happy.

That's how terrified he was by what Eric Hill had told him.

That's how bad this was for him.

So we were able to take that and turn it into something that I thought was really powerful

for the jury.

It's like the, it's like the nightmare's over now, you know?

Yeah.

It didn't matter that he was in jail, arrested by the feds and you're happy.

How do you end up happy when you're arrested by the feds?

It's when you think there's someone worse than the feds out there trying to get you because

you've been entrapped, you know?

And it just, it hits so hard.

Um, I felt at least, um, but I have to tell you actually about the most surprising moments

that I've ever had in a courtroom to go back to his testimony.

Okay.

I actually can't remember if it happened.

I think it happened after his cross.

I don't think it was after his direct because he would have maybe been asked about it.

It might've been, it was in between one of them.

So it ends.

I think it was his entire direct ends.

And I sort of breathe a sigh of relief.

We're waiting for him to, he's told he can step down from the witness stand and we're

waiting for him to come back over.

And I'm not looking, I'm looking down at my notes and all of a sudden I hear the prosecutor

yell, Mr. Malavi.

And I look up and my client is over there at the jury box chatting with the jury.

Oh, like exchanging pleasantries.

What is he doing?

Good afternoon.

You know, mumbling.

So we couldn't, I didn't know what he was saying.

Yeah.

He was mumbling.

Just, I couldn't understand, but he was over there just, Hey, my testimony's over.

You know, I guess now is when I think I can talk to the jury.

I don't know.

It was, I couldn't believe it.

So we got him back over to council table.

The judge sent, sent the jury out and the judge just looks at him and nobody knew what

he said to them.

We were, the prosecutors were closer than us and they didn't hear.

And the judge looks at him and says, what did you say to the jury?

And he doesn't even, he doesn't hear the day he's hard of hearing too.

So he said, what?

And my co-counselor yells in his ear, what did you say to the jury?

And he just says, I just, Oh, I just said, I hope you didn't mind.

I did my headphones because he was wearing headphones because he's hard of hearing.

Oh, okay.

Okay.

And the judge just looks at him and says, Mr. Malavi, after everything that we have been

through this week, I'm very surprised at you.

And then everyone just dropped it.

But like, I, we couldn't, when the, when the jury left and like Mr. Malavi, in the first

moment that Mr. Malavi had been taken away, like in the back in a break, my co-counsel

and I just looked at each other, like what on earth just happened?

And because one thing was like, I mean, I believe him, but at the same time, it's like, I don't

know what he said to that jury.

Yeah.

Well, I'm surprised they didn't bring the jurors back in and ask him on it.

Like, what did he say?

You know, like, can you disregard that?

I mean, they just, to let it go like that?

Even in a state court.

I don't think that, I don't think we asked the jury.

I don't really understand what the judge is saying.

Like, I'm so shocked at you based on everything we've been through, like, because you've been

through the trial.

Like, yes, we've all been through a hundred times.

You know, it was funny.

We actually, we wondered that too.

That was actually a subject of some interpretation back at the office as to whether or not it was

sort of like a little nod to like, hey, your case is going okay.

Why are you over there chatting to the jury?

Oh, yeah, yeah, yeah.

Yeah.

I don't know.

I don't know if that's what it was.

I mean, everyone was so shocked.

It was just this really weird thing.

Great story, though.

Yeah, right?

Hope it's the only time I get that story.

Yeah.

Okay, so then is there anything else about the trial that we want to talk about then?

No, I mean, other than that, the drama that was causing me a near heart attack of whether

or not there was going to be an Indian lawyer that blew everything up turned out to just

be me worrying and there was no Indian lawyer.

Oh, Indian lawyer is bad.

And the suspense on that.

I leaned over to the prosecutor just as like when he rested and I just said, man, I was

sure you had an Indian lawyer ready to jump out of the back back.

And he shot right back at me.

He was like, I looked for one.

Don't think I didn't look for one.

Oh, my God.

Good for him.

But no, they didn't find one.

So, yeah, no, that's it.

That's the trial.

We're going on to, you know, closing arguments.

Okay.

You've given us a piece of yours already.

I mean, I guess I have an idea of how the prosecutors went.

Anything of note that you want to share?

Closing?

We felt good about it.

I would say the main event, other than that moment I've already described, is really talking

about why the case was unique and about how they should think of Eric Hill's testimony.

Because, of course, the government says, you know, we made the case without Eric Hill.

Okay, just snip his testimony out.

We made the case without him.

All right.

Yes, we wouldn't have had him do those things.

But the other evidence is enough.

You can ignore Eric Hill's evidence.

Disregard him.

Even if you disregard him, our case is fine and we've met our burden.

It's basically their pitch.

What else did they have, you know?

And so, of course, our goal was to center Eric Hill as absolutely indispensable to any statement

the government made.

And so, if you didn't believe even a single thing that Eric Hill said, you had a reasonable

doubt and you couldn't convict because that was where we were on firm ground.

And so, you know, every trial attorney is trying to come up with their good metaphors.

What we went with is we said that it was like, oh, so I should say this.

We have a great reasonable doubt instruction.

And I'd actually heard about this in Florida, but I'd never actually had it myself.

Our reasonable doubt instruction says a few other things that aren't as helpful.

But the last line of it is proof beyond a reasonable doubt, therefore, is proof of such convincing

character that you would be willing to rely and act upon it without hesitation in the most

important of your own affairs.

And isn't that just an absolute softball to every defense attorney to say, let's think about it's

basically a violation of the golden rule.

And it's just an opening for us to say, let's think about our most important affairs.

Major decisions for medical history, like surgery, buying a house or not buying a house.

Getting on an airplane, you know.

Right.

It's a classic, right?

Getting on an airplane and somebody says, you know, something crazy about it would just still

get on any of those.

Think about those major life decisions.

And we went with, I went with house.

I don't know why.

But what I, what I said was, imagine if you were touring a house and no matter what else

you thought about it, you're looking at buying it.

And the real estate agent said, you know, just so you know, the foundation of this house is,

has a crack running all the way through it, several in fact, and it's really beyond repair.

There's nothing you can do to repair it.

It's just the foundation.

Every other part of the house that looks fine to us, it's serviceable, but the foundation's

just beyond repair.

Would you buy that house?

Just no matter what else you thought about the rest of it.

If somebody told you that the foundation was beyond repair, of course not.

Eric Hill, no matter what they say, is the foundation of their case.

They can't run away from it at all.

He was their agent.

He started the case.

He started the case with a lie.

He started the case with a lie about senior, a man known to me as senior has come to me wanting

to kill his business partner.

It starts with that lie.

He poisons the case at every step of the way.

He's the only reason why Mr. Malavi does this.

He's the foundation.

They can't, you can't cut him out.

You can't disregard him.

And it's why you know, it's how you know that this is not guilty, that he was entrapped.

And I also made use of their off-ramp imagery because I said the case is unique because we

actually got to see in the evidence, conclusively, objectively, just not opposed by anyone, we

actually got to see Mr. Malavi when he is presented with an off-ramp before the threats

and Mr. Malavi when he is presented with an off-ramp after the threats.

And when he's presented with an off-ramp before the threats, when he's got the mask on, when

he hasn't been told he's going to get murdered.

The guy says, do you want a meeting?

He says, no.

I told the jury, I see he zips down that off-ramp.

You couldn't stop him from going down that off-ramp when he hears it.

That's exactly what the agent told you to look for, for whether someone wants to be involved

in this sort of thing.

OK, now they want you to say he doesn't take his off-ramps after he's told he's going

to get murdered.

OK, well, if you're driving down the highway and you see an off-ramp and it looks normal

to you, you can take that off-ramp.

But if you're driving down the highway and someone else in your car says, hey, that off-ramp,

I know it looks normal, but if you drive on it, it will actually explode.

It doesn't matter if it looks normal.

You're not going to take it.

You can't.

You've been told you're going to die.

That's what they did.

I like that.

That's a great imagery.

And how was your client during this time?

Did you guys talk at all?

How did he feel?

Or what was he thinking?

He was good.

I think that he was as good as anyone could be.

He was nervous, but he was trying to be strong for his family.

His family came and watched the whole trial.

His wife was there the whole time.

His daughter was there.

His son couldn't watch because he was a witness.

And his brother couldn't watch because he was a witness.

But, you know, he really wanted his family to feel like no matter what happened, this was going to be OK.

So that was that was his attitude the whole time.

I think he was kind of suspending thought until there was something to think about, which I think I would do as well.

Cool.

So then the jurors come back, right?

You got verdicts.

Jurors.

Yeah.

Jurors send a note back first saying they want to hear Eric Hill's testimony again, which we had no problem with that.

And we felt like that was a good sign, if anything.

And then when they when they came back, they came in and nobody looked at us.

I always think it's funny that I'm always told if they, you know, the myth about they look at you, you're fine.

If they don't, it's guilty.

Nobody ever looks at me and it's either guilty or not guilty.

So I still do it every time.

And they came back and the judge pretty quickly got through the counts and, you know, we got to hear not guilty four times.

And when that fourth not guilty hit, it was just like a whole weight had been lifted off the whole defense team, really.

A lot of me more than anyone, of course.

But really, I mean, we all lived with this case for a year.

I mean, when I when I say my investigator lost sleep over it, he I would literally get to the office and he'd be like, I've been here since the middle of the night because I was upset about what they're doing.

And that was like six months into the case.

And we were we were going to go months more before we hit trial.

So it really had an impact on everyone.

Wow.

And did Mr. Malavi get to go home?

He went home that same day.

Yeah, he you know, for the first time ever, because it was just such a big deal for everyone.

My investigator and I actually went to his release at the prison like 20 minutes away.

It took him a few hours to process him out.

So we hung out the office for a bit.

And then we drove over and kind of sat with his wife and his son was there at the time and waited for him to come out and actually got to see him when he was first out.

And that's actually the picture that ran in the Dallas Morning News maybe a month after is the picture that's in there on the Web site and in the paper.

Well, I don't know if it's in the paper, but that's actually right outside the prison, like within five minutes of them being released for the first time in a year.

Wow.

It was pretty crazy.

Where are they now of this podcast is that Mr. Malavi is free.

And soon after this case, Eric Hill was arrested for alien smuggling and sentenced in federal court in the Southern District of Texas, which, you know, I don't I don't get happy to see people go to prison very often as a public defender.

But, you know, maybe made an exception this once.

I have a closing thought.

Let me just throw this out there.

It's kind of interesting to me because I think about, you know, one of the consequences.

I don't know what your politics are, but one of the consequences of presidential election in 2016 is kind of this revolving door of former U.S.

attorneys and FBI agents and like this, you know, obsession we've had with this Mueller investigation and everybody talking about, you know, kind of like how the FBI does great work.

And we should respect our, you know, our federal law enforcement agencies.

And as a public defender and someone that's worked in both federal and state systems, it's kind of interesting all of a sudden, you know, as liberals or as people kind of devoted to due process and restricted government to kind of see, oh, this these agencies can do no wrong.

They're out there, you know, protecting and serving.

And to some degree, there were some players like that in your story, like Iceman, who we, you know, had this patina of American hero.

But at the end of the day, I mean, what is, I mean, going on?

I mean, the government really, you know, encouraged somebody and didn't supervise this informant.

And, you know, Mr. Malavi spent a year in custody, right, for, you know, for really being a victim of someone else's manipulation.

And I know your trial defense didn't really focus on kind of attacking, I think, the government agents as aggressively.

But I think they share a significant blame more so than just a little bit of negligence.

I mean, they know what Eric Hill was capable of, and they didn't kind of rein that in.

And so it's just very interesting, I think, in the context of what's going on is that, you know, none of these agencies, you know, even with the patina of federal court or the FBI or being U.S. attorneys, you know, just like you said, just because it's in federal court doesn't mean that all of a sudden they're really tackling, you know, quote unquote, real crime.

I mean, like innocent people or regular people get caught up in this system because the machines of injustice kind of keep turning.

So the government has created an incentive for people to lie about crimes or, you know, created an incentive for people to coerce people into committing crimes.

Like, all kinds of outrageous behavior is allowed, you know, illegal and outrageous behavior.

Yeah, or let me, this is kind of a nice little, I didn't mention this, it's a nice coda to that.

The last text message that Eric Hill sends Iceman when he, Mr. Malavi had just been arrested, and Eric Hill thinks that he has done a great job, mission accomplished for Eric Hill at this point, because most cases don't go to trial and whatnot.

Eric Hill sends Iceman this text message after everything he did.

This is what he's thinking.

If you need me, give me a call.

I will be ready.

Also, hope you and Ted keep me in mind.

If you guys ever need a plane or crazy pilot, I'm your guy.

Dot, dot, dot.

Hope I proved I can do the job.

Oh, my God.

And then, and then, and on top of that, right, like, by, by allowing Eric Hill to continue his behavior, the government essentially, right, like, what does he get arrested for shortly thereafter?

Smuggling people, right?

Like, I mean, it's like, really, like, people over the border.

I mean, just a horrible, horrible crime, right?

Like, of, like, really, in terms of, like, manipulative, violent in some ways, right?

Like, bringing people, right, in this dangerous circumstance, they've basically kind of greenlit it by, by looking the other way in his unscrupulous and unlawful conduct, right?

They're like, oh, because he's saying to them very specifically, I'm a crazy pilot.

I mean, it's just like, come on, man.

And if I get caught, I'll just work it off.

Yeah, right?

If you give him a cookie.

Yeah.

Well, Mike, dude, I want to say that this is, like, probably one of the more interesting, I mean, I feel like a lot of our, all our episodes are interesting, and I love them all, but this, this story was especially, it was really great.

I can't wait to edit this and air it for everybody here, and, you know, you know, and great job.

Yeah, fantastic job, man.

Yeah, just the cross-examination, the, the, being able to ditch your cross-examination and go with the moment and, and have a pretty stellar, you know, cross-examination still of an American hero.

The visual imagery, I mean, the off-ramping, I mean, I think, you know, we were talking about this the other day, is that a lot of, I think a lot of public defenders kind of tune in, and they're listening to these episodes and getting ideas and about how to do arguments and how to do crosses and just getting inspired by the nuggets that they get on this episode.

I mean, I mean, I personally, I feel like I got, yeah, well, that's why, I mean, I love the show.

I mean, you know, like you all, you all have been in, in the game for a long time, probably longer than me.

I've been in for eight years.

I got a bunch of trials, but, you know, every time I listen to a show, I mean, you hear something that you think, I don't know if I would have thought to do it that way.

Or, you know, that's a cool way to explain something to the jury, or, you know, I wouldn't have made that strategic decision, but it's interesting to see, you know, to hear how other people are thinking of the case.

And, I mean, you know, I'll tell you, like, I didn't know about your podcast.

I'd seen it, and I meant to start listening to it, but I didn't start until someone from my office sent an email around and said, I found this great podcast.

You should give a listen.

I said, okay, that's all the excuse I need.

Like, I've been meaning to do it anyway.

And I just threw, like, a random episode on, and it was awesome because, you know, as a public defender, especially thinking back to my time in state court, you know, there are, you're right, there are victories happening all the time.

Like, there are also bad things happening in the system, more than good things, but it's important to remember the victories because they are more frequent than people think, and they involve regular people.

And so, I remember listening to your podcast, like, whatever episode and loving it, and then I went back and I told someone, hey, I listened to that, you know, you should listen to it.

Like, it was a good recommendation.

And they said, like, oh, what'd you like about it?

And I couldn't think of anything else to say.

I was just like, you know that after you win a trial at a PD's office, there's always, like, an extended lunch where you all go out, and everyone's happy, and you all talk about the crazy things that happened in the trial.

And I just told them, it was like lunch had been recorded.

Like, the victory lunch has been preserved for history now.

Yeah, yeah.

That's funny you say that.

So, it's just great.

Mike, you hit it right on the head there, dude.

That's exactly what this podcast is.

You're like our little Texas surrogate or something.

No, that was the idea.

For me, the idea was happy hour, going out to happy hour.

Yeah, same thing.

You know, Friday, having drinks with your colleagues, and, you know.

So, yeah, it's exactly what it is.

Well, as we end, I know you mentioned a little bit about your history in Miami and then at the criminal justice clinic that you went to law school in.

But can you tell the audience why you became a public defender or what inspired you to, you know, this calling?

Yeah, sure.

The puzzle pieces for me came together over a pretty long period of time.

When I was actually in high school, I was on a great mock trial program.

And it was up at the Nichols School in Buffalo, my high school where I grew up in western New York.

And there was a great judge who would come in and teach us cross and direct for these, you know, high school competitions.

And I just loved the format.

I had no idea about the legal system.

I was just a kid watching Law & Order, right?

And when you watch Law & Order, the old school ones, and you see Jack McCoy winning everything and doing everything the right way, you kind of be a sociopath to want anything but to be a prosecutor, if that's your context.

Of course, the show is a lie, and I found that out bit by bit.

And so I knew from sort of a weirdly young age that I might want to do jury trials as a format, that it was something I might be able to be good at or help some people with the skill set.

I didn't know which people, though.

And so I kind of put it in my back pocket for a number of years.

And I went to college at a really great place for ideas and thought.

It's a small school called Sarah Lawrence, north of New York City.

I didn't do much with the law there because it just wasn't where I was at.

But I knew that I was kind of going to go to law school after.

And one thing that happened in college is I took a class called Psychology and the Law.

And one of the articles we read was by people going over these statistics for the percentages of young black men who get arrested in the United States.

And being a sheltered suburban kid who grew up in the certain neighborhood that Mr. Malavi lived in,

I, you know, I thought I had a good sense of right and wrong and, you know, was trying to be as smart as possible.

But I read the statistics about, you know, 50 percent of young black men between the ages of 18 and 24 have been arrested at some point, whatever that statistic is.

And I was just totally shocked by it.

And it blew my mind.

I just couldn't believe that this was not some historical fact, that it was a present day issue.

And, you know, I knew there were problems, but I didn't know that it was to that extent.

I just felt totally shocked by it.

And so then when I went to law school, I I initially thought I'd made the biggest mistake of my life in one L year because one L is just sort of I find it to be a one year initiation period that generally doesn't have much to do academically with whatever you went to law school for.

And so I didn't really find my people in law school until I went on a service trip spring break to the New Orleans public defender who are battling in the trenches down there in a very hostile environment.

And then I was lucky enough to get an internship at the San Diego Federal Defender's Office, my first interaction with the federal courts.

I still remember watching my federal sentencing and watching them go through the numbers like it was not a human being that was being sentenced, that it was just somebody who had an offense level and a criminal history category.

And this is what we do.

And there's your 87 months, sir.

Thanks for coming.

And that was shocking as well.

And then I was lucky enough to be in a criminal clinic at law school for criminal defense and prisoner advocacy, the one I mentioned earlier with Abby Smith.

And that's where I sort of realized then for the first time that I always wanted to be a public defender for a lot longer than that, just didn't really know what it was.

It was just sort of the population that I wanted to be using whatever skills I could muster to help.

And it was the people in public defense, in the clinic, who I liked to be around, maybe a little bit more so than our brothers and sisters who wanted to go to the firms or be involved in that sort of stuff.

Nothing against them.

It's just not for me.

They're not your brothers and sisters.

Where are your brothers and sisters?

They're not your brothers.

I'm just trying to be nice.

But yeah, so I got a job at the Miami PD, you know, at Carlos Martinez's outfit down there.

He's been the elected PD for a long time, sort of a staff-focused boss and trying to do what he can with a budget that does, like for many of us, does not totally fit what is needed.

And just had a great time.

I made some of the best friends of my life in Miami.

Got to do it helping people and got to do it yelling at people, judges and prosecutors that I thought were just doing the wrong thing and make an impact some days and at least have a good time on the others.

So, you know, when it came time for my run in Miami to end, I knew I wanted to still be a public defender, and so I looked at the federal public defender system for a little bit more sustainability, and I'm happy to have found a home in Dallas.

So that's kind of my, like, little academic journey to public defense.

But, man, eight years have gone by quickly.

I still feel like I'm new at this, and yet, you know, I'm not.

Yeah, well, that's great.

I mean, it's just cool.

I mean, what I like about this podcast, and especially when we get to interview people outside of our little Los Angeles bubble, is, like, it's just cool to, like, meet and know there's awesome public defenders all over the state, all over the country doing an excellent job for our clients.

And, you know, like, and you're no exception to that, Mike.

You seem like a really awesome fucking dude, and I'm glad you're on our side.

Yeah, man.

Glad to be here.

I'm glad you invited me on.

It's been a lot of fun.

Thanks for reaching out.

Thanks for sending the email, going to the website, filling out the submission form, and being on the podcast.

That's all it takes to be on the show, guys.

That's all it took, guys.

All he did was he went to the website, anothernotguilty.com.

Yeah.

And he said that.

Anothernotguiltypod.com.

Oh, man, I'm like Joe Biden up here, messing up the phone number.

But, yeah, we'd love to hear if you're someone that's been involved in the justice system as a defendant, defense attorney, prosecutor, clerk.

Clerk, judge, bailiff.

And if you'd like to be on the podcast, do what Mike did and fill out the form and give us a ring.

But, no, seriously, Mike, thanks for being on the show, buddy.

Appreciate it.

No problem.

Thanks for tuning in to this week's episode of Another Not Guilty.

Shout out to Daniel Mark, original A&G theme music composer, and Mike Grimm for the remix.

And guess what?

We'll be back in two weeks with Another Not Guilty straight from the trenches.

We'll be back in two weeks.