By Matthew Russell Lee, Patreon Maxwell book
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SDNY COURTHOUSE, Sept 18 – In the US v. Trevor Milton trial on September 16, an ex-Nikola designer was cross examined, and a higher-up executive who remains with the company, Dale Prows, was questioned by prosecutors. Inner City Press was there. Thread here and below.
On Sunday, September 18 Milton's lawyers filed a motion seeking to exclude an article from the Irish Times as hearsay, starting "Dear Judge Ramos: We represent the defendant, Trevor Milton. We write as a follow-up to the colloquy at side bar, on Friday, September 16, 2022, when we objected to GX-701 (copy attached), a news article published in the Irish Times, on the ground of hearsay. See Transcript 774:2-777:16. News articles are, in general, hearsay. Tokio v. Rosner, 206 F. App’x 90, 95 (2d Cir. 2006); United States v. Mingo, 112 F.3d 506 *1 (2d Cir. 1996) (unpublished decision); Pallotta v. United States, 404 F.2d 1035, 1036 (1st Cir. 1968) (newspaper article written by a “reporter . . . . was clearly unusable for any purpose”). A news article like GX-701, furthermore, which contains quotations, requires a hearsaywithin-hearsay analysis. See Rule 805. Thus: Mr. Milton’s statements in GX-701 -- the “lower level” in the hearsay-within-hearsay analysis -- are not hearsay. Rather, they are statements of a party opponent. See Rule 801(d)(2)(A). The article itself, however -- the “upper level” in the analysis -- is hearsay. The article is an out-of-court statement by the reporter, which attributes quotations to Mr. Milton. “By attributing quotations to [Mr. Milton], the reporter necessarily made the implicit statement, “‘[Mr. Milton] said this!’” Larez v. City of Los Angeles, 946 F.2d 630, 642 (9th Cir. 1991). And those “statements -- ‘[Mr. Milton] said this!’ -- were offered for the truth of the matter asserted: that [Mr. Milton] did in fact make the quoted statement[s].” Id. Accordingly, the article is hearsay, unless -" Full 8 page submission on Patreon here.
September 16: Cross examination of Babiarz, by Milton's lawyer Torrey Young.
Young: You're not an engineer, right? Babiarz: I'm not. Young: And your designing is not just of vehicles - you designed a dog bed, didn't you? Babiarz: Yes. Young: And a yogurt container, right? Yes.
Young: This tweet, it was to Elon Musk , right?
Babiarz: Yes.
Young: Another EV executive active on social media, right?
Babiarz: I would say so. Young: It was about the CyberTruck, right? Babiarz: Yes. Young: You thought it was entertainment, yes? Babiarz: At first
Young: You never worked at Tesla? Babiarz: I did not. Young: Are you aware that the Tesla Roadster was built on the Lotus chassis? Babiartz: Yes. Young: But you say the Tesla vehicles are ground up. Babiartz: Yes.
Young: You were given a Nikola stock package, right? Babiarz: Yes, by Trevor himself. AUSA Roos: Objection, your Honor. May we have a sidebar? [Whispered sidebar ensues]
Young: Is this the Nikola YouTube marketing that you appeared in? Babiarz: Yes. AUSA Roos: Is there a proffer of relevance as to this marketing video? [Another sidebar]
Video is played, without much impact. Now re-direct: AUSA Roos: You were asked questions about your other work, including patents? Babiarz: Yes, for the grill, the lights and the tailgate. No further questions.
OK - next US witness is Dale Prows of Nikola.
AUSA Jordan Estes: What's your educational background? Prows: I have a finance degree from BYU. I was head of the hydrogen supply chain, then hydrogen infrastructure development. I'm now the head of Strategic Projects
AUSA: When Nikola went public, did it have any contracts with utilities? Prows: No. [Reference is to Milton's claims on Tesla Charts podcast and elsewhere]
US plays video of Mark Russell and Prows pretending that a Nikola vehicle was quickly fueled with hydrogen at Phoenix headquarters. AUSA: Was it really fueled up there? Prows: No. That would have taken an hour. [So, weren't Russell and Prows part of the fraud?]
With jury out on a 2d break, Judge Ramos says, "Mr. Prows, may I ask you a question, off the record? What happens with the oxygen in the process?" Thread will continue.
They're back. Prows: 65% of the cost of producing hydrogen is electricity... We had acquired a one ton per day electrolyzer, it was stored in a warehouse in Phoenix. AUSA: By Sept 2020 had it ever been used? Prows: No.
AUSA Estes: Do you recognize this email, to Trevor Milton and Mark Russell? Prows: Let me look at it. Milton's lawyer (Bondi) Your Honor, may we approach? Judge Ramos: Sure.
AUSA: Please publish the email. Prows: It's from me to Trevor Milton. It says the capital expenditure would be $160 million. AUSA Estes: So very expensive. Judge: Rephrase Bondi: Objection - leading. AUSA: How did you view the cost? Prows: Very expensive.
After jury break, AUSA continues with Milton on another podcast. AUSA Estes: Mr. Prows, were you ever involved in providing Mr. Milton with talking points about hydrogen? Prows: Never. Now: Transport Topics Roadshow Podcast, March 20, 2022
AUSA Estes: Mr. Prows, whom did you write to here? Prows: Joe Joshi, he worked for me at Nikola. This was about hydrogen. AUSA Estes: Let's play Mr. Milton on this Yahoo! Finance podcast. Milton: We get hydrogen at $4 per kilo. [Contract was for 4 times that]
AUSA: Mr. Prows, so what Mr. Milton said was false? Bondi: Objection! Prows: Yes. AUSA: Do you think it was a statement about the future? Prows: No. He used the word "now."
AUSA: Mr. Prows, were you on Twitter? Prows: No. AUSA: But have you seen some of his tweets? Prows: Yes. AUSA: Here he said, hydrogen at $3, it's game over for diesel. Did you see this one? Prows: Yes. And it wasn't true.
AUSA: Now, the Tesla Daily podcast. Bondi: No objection. On podcast: "When I produce hydrogen I'm paying four cents." AUSA: Was that true? Prows: No.
[This is an Inner City Press question, not one asked in the US v. Milton trial - yet: What are the duties of corporate executives if and when they hear their chairman publicly lying? "Discuss."]
Inner City Press @innercitypress · 1h Milton (on podcast) Hydrogen stations were $40 million, we got 'em down to $15 million. AUSA: Mr. Prows, was that false? Prows: Totally false.
Milton (on podcast) We're gobbling up all the best land so that no one can compete with us. AUSA: Mr. Prows, at that time, was Nikola buying any land at all? Prows: No.
Now email with Prows, about Milton on Tesla Charts pod, "especially the infrastructure section." Prows: It was full of falsehoods. I got this email from Andy, and talked to Pablo. I was concerned.
AUSA: Did you raise it with Mr. Milton? Prows: No. To Mr. Russell.
AUSA: No further questions.
Judge Ramos: We'll let you go 7 minutes early. Don't read about the case.
Afterward Inner City Press for the second time in the week asked Milton a question on Pearl Street. This time, he answered. Video here.
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