Warfel v. Hecht

MOTION for Summary Judgment

D. Colo.October 24, 2016

Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:16-CV-00686-MSK-KLM BROOKE LAUREN WARFEL, Plaintiff, v. NIKOS HECHT, Defendant. PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANT NIKOS HECHT ON PLAINTIFF’S ASSAULT AND BATTERY CLAIMS (COUNTS 1 AND 2 IN THE COMPLAINT) On the night between July 26 and July 27, 2015, Defendant Nikos Hecht subjected Ms. Brooke Lauren Warfel, the plaintiff in this case, to hours upon hours of verbal and physical abuse. The District Attorney for Pitkin County brought charges against Defendant Hecht for some of this conduct and Defendant Hecht ultimately entered into a guilty plea to a Class 3 misdemeanor for harassment and committing domestic violence against Ms. Warfel.1 During the guilty plea hearing, Honorable Judge Fernandez-Ely referred to that night as a “Night of Terror.” As part of his plea deal, Defendant Hecht admitted he “struck, shoved, kicked, or otherwise touched [Ms. Warfel] or subjected [Ms. Warfel] to physical contact...with the intent to harass, annoy or alarm [Ms. Warfel].”2 He also plead guilty to domestic violence, which is defined in Defendant Hecht’s Guilty Plea as: “Domestic Violence” means an act or threatened act of violence upon a person with whom the actor is or has been 1 Ex. 1, ECF No. 1-9. Hr’g Tr. Feb. 24, 2016, People v. Hecht, Cause No. 2015M197, Pitkin County Court. 2 Ex. 2, Guilty Plea of Defendant Nikos Hecht, Feb. 24, 2016, ECF No. 1-13 at ¶ 17. Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 1 of 16 Page 2 involved in an intimate relationship. Domestic violence also includes any other crime against a person or crime against property or any municipal ordinance violation against a person or against property, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.3 Defendant Hecht’s factual admissions in his guilty plea (both under oath before the Hon. Fernandez-Ely and in writing in his plea agreement) establish that there are no genuine issues of material fact in this case regarding Ms. Warfel’s assault and battery counts for the events of that night, rendering a trial of these issues unnecessary. Accordingly, Ms. Warfel moves for summary judgment holding that Defendant Hecht is liable for assault and battery against Ms. Warfel for his actions during the Night of Terror, leaving only the issue of the amount of damages to be awarded as to these claims. UNDISPUTED MATERIAL FACTS 1. Ms. Warfel and Defendant Hecht were involved in an intimate relationship during July 2015.4 2. On July 26 and 27, 2015, Ms. Warfel was at Defendant Hecht’s house in Aspen, Colorado.5 3. Defendant Hecht was berating Ms. Warfel and being verbally abusive, relentlessly inquiring as to her past sexual partners and experiences, such that Ms. Warfel 3 Ex. 2, Guilty Plea of Def. N. Hecht at ¶ 9. 4 Ex. 7, Def’t’s Resp. to RFA No. 5; Ex. 1, Hr’g Tr. at 10:9-13. 5 Ex. 2, Guilty Plea of Def. N. Hecht at ¶ 15. Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 2 of 16 Page 3 decided to leave in an effort to de-escalate the situation. Defendant Hecht grabbed Ms. Warfel’s purse as she was attempting to leave Defendant Hecht’s home.6 4. With the intent to alarm and otherwise exert dominion over Ms. Warfel, Defendant Hecht physically contacted Ms. Warfel, grabbing Ms. Warfel’s purse and bruising her arm. Defendant Hecht admitted to intentionally making contact with Ms. Warfel, “I grabbed her purse and she was attempting to leave my home and doing -- and in so doing I may have caused the strap of her purse to bruise her arm. I believed that the purse contained my property including several wristwatches and pieces of jewelry.”7 He also had to admit that he did so with the intent to alarm or annoy Ms. Warfel, “THE COURT: … the charge requires that you did so with an intent to alarm or annoy [Ms. Warfel]. … THE DEFENDANT: That’s correct,”8 “you told me that you agreed that it was with the intent to alarm and annoy so I appreciate that—as part of the accountability. . . .”9 These events resulted in physical and emotional harm to Ms. Warfel.10 The judge specifically noted that Defendant Hecht’s physical contact bruised Ms. Warfel, “You did bruise her.”11 5. A 911 call was made by Ms. Warfel from Defendant Hecht’s home, but fearful of Defendant Hecht’s reprisals, she hung up; when dispatch called back, Defendant Hecht falsely denied there was an emergency.12 6 Id. at ¶ 15. See also Ex. 8, Tr. from Night of Terror (Jul. 26, 2015), WARFEL000374-386. 7 Ex. 1, Hr’g Tr. at 9:4-8. 8 Ex. 1, Hr’g Tr. at 9:9-14. 9 Ex. 1, Hr’g Tr. at 25:13-16. 10 Ex. 1, Hr’g Tr. at 9:4-6 (“I grabbed her purse and she was attempting to leave my home and doing and in so doing I may have caused the strap of her purse to bruise her arm).” 11 Ex. 1, Hr’g Tr. at 25:10-15:13. 12 Ex. 3, Deputy Report for Incident 15P011687, WARFEL003197-3201; Ex. 9, Deputy Report for Incident 15P011718, WARFEL003206-3226 at WARFEL0003220 (“Warfel changed her story because she was scared of Hecht. Hecht told Warfel his attorney would make mincemeat out of her.”); Ex. 10, Pitkin County Sheriff Call Detail Report, WARFEL003197-3201. Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 3 of 16 Page 4 6. When Ms. Warfel was finally able to leave Defendant Hecht’s home, she was checked into Aspen Valley Hospital, where, according to the Emergency Department Note, she was treated for depression and suicidal ideation.13 7. During the police interview at the hospital, Deputy Monique Merritt saw “a bruise on [Ms. Warfel’s] right inner bicep that was extremely purple with a large red spot in the middle. [Ms.] Warfel said the bruise was from the physical fight with Hecht.”14 8. Defendant Hecht pled guilty to a Class 3 misdemeanor for harassment, which can be punished by up to six months in jail and/or a $750 fine.15 9. Defendant Hecht was required to undergo a domestic violence evaluation and complete treatment as a result of his guilty plea.16 10. On February 24, 2016, Defendant Hecht pleaded guilty to the following: That on or between July 26, 2015 and July 27, 2015, in the County of Pitkin, State of Colorado, Defendant Nikos Jonah Hecht, “with intent to harass, annoy, or alarm [Ms. Warfel], unlawfully struck, shoved, kicked, touched, or subjected the victim to physical contact; in violation of section 18-9-111(1)(a), C.R.S., and said offense constitutes an act of Domestic Violence as defined in C.R.S. 18-6-800.3, as amended; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Colorado, and thereby did commit the crime of HARASSMENT – STRIKE, SHOVE OR KICK, as amended.”17 13 Ex. 4, Emergency Department Note from Aspen Valley Hospital, WARFEL000551-553. 14 Ex. 5, Deputy Report for Incident 15P011718, WARFEL003211; Ex. 6, WARFEL 459. 15 Ex. 1, Hr’g Tr. at 11:7-11:11. 16 Id. at 11:12-16. 17 Ex. 2, Guilty Plea N. Hecht at ¶ 17 (emphasis added). Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 4 of 16 Page 5 11. On February 24, 2016, as part of Defendant’s Guilty Plea, Defendant Hecht plead guilty to committing domestic violence towards Ms. Warfel, which was defined as: “Domestic Violence” means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. Domestic violence also includes any other crime against a person or crime against property or any municipal ordinance violation against a person or against property, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.18 12. At Defendant Hecht’s Plea Hearing, Judge Fernandez-Ely dubbed the night of these events a “night of terror” for Ms. Warfel.19 STANDARD OF LAW A. Summary Judgment. 13. The facts presented by Ms. Warfel in this Motion are sufficient for the Court to grant partial summary judgment in favor of Ms. Warfel as to liability for assault and battery. Summary judgment must be granted “when there is no genuine dispute as to any material fact and ... the moving party is entitled to judgment as a matter of law."20 “The burden of showing the absence of a genuine issue of material fact for trial can be discharged by demonstrating ‘that there is an absence of evidence to support the nonmoving party’s case.”21 “If there is insufficient evidence from which a reasonable fact-finder could find for 18 Id. at ¶ 9. 19 Ex. 1, Hr’g Tr. at 24:15-17. 20 Fed. R. Civ. P. 56 21 Dudnikov v. MGA Entm’t, Inc., 410 F.Supp.2d 1010, 1011-12 (D.Colo. 2005) (quoting Celotex Corp. v. Catrett, 447 U.S. 317, 325 (1986)). Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 5 of 16 Page 6 the non-moving party as to each element of its claim, summary judgment is proper.”22 Rule 56 specifically allows for motions for partial summary judgment.23 B. Collateral Estoppel Created by Previous Criminal Conviction. 14. The Tenth Circuit in Jiron v. City of Lakewood established that a party who pled guilty to a crime in Colorado state court is collaterally estopped from re-litigating the elements of that crime in a subsequent civil proceeding.24 In Jiron, the plaintiff pled guilty in Colorado state court to felony menacing, in violation of Colo. Rev. Stat. § 18–3–206.25 At the plea proceeding, the plaintiff agreed that she had placed another person, a police officer, in fear of “imminent serious bodily injury by the use of a knife using threats or physical actions.”26 During a subsequent civil action initiated by the plaintiff, she asserted that she threatened only harm to herself and in no way verbally or physically threatened the police officer.27 15. The Tenth Circuit refused to allow the plaintiff to re-litigate an element of the crime to which she pled guilty.28 Because the elements of the crime of felony menacing were issues raised and determined in the plea proceeding, noted the appellate court, and because the other elements of collateral estoppel were satisfied, the plaintiff was precluded under the doctrine of collateral estoppel from re-litigating an element of that crime.29 Accordingly, the 10th Circuit Court assumed for the purposes of the civil case that the 22 James, 129 F.Supp.3d at 1221 (citing Adams v. American Guarantee & Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000)). 23 See, Fed. R. Civ. P. 56(a) (“A party may move for summary judgment, identifying each claim or defense— or the part of each claim or defense—on which summary judgment is sought”). 24 Jiron v. City of Lakewood (10th Cir. 2004) 392 F.3d 410, 417. 25 Id. 26 Id. 27 Id. 28 Id. 29 Id. Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 6 of 16 Page 7 plaintiff did place the officer in fear of “imminent serious bodily injury” by use of a deadly weapon.30 16. The collateral estoppel issue at hand is identical to the issues decided in Jiron. Here, Defendant Hecht has admitted that he committed acts of physical violence against Ms. Warfel as more fully detailed in the attached exhibits. 31 Defendant Hecht voluntarily entered into this plea agreement with the State of Colorado and has admitted the facts necessary for Ms. Warfel to prevail on her claims for assault and battery, as he has already admitted to physically making contact with Ms. Warfel with the intent to alarm her as well as a finding of domestic violence.32 The admissions by Defendant Hecht fulfill the elements required to satisfy a finding of civil assault and battery. CLAIMS UPON WHICH PARTIAL JUDGMENT IS SOUGHT A. Defendant Hecht is Collaterally Estopped from Re-Litigating the Elements of Battery and Assault. 17. Under Colorado law, collateral estoppel bars re-litigation of an issue if: (1) the issue sought to be precluded is identical to an issue “actually litigated and necessarily adjudicated” in the prior proceeding; (2) the party against whom estoppel is asserted was a party to or in privity with a party to the prior proceeding; (3) there was a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issues in the prior proceeding.33 Here, all elements of collateral estoppel have been met. 30 Id. at 17-18. 31 Id. 32 Ex. 2, Guilty Plea N. Hecht at ¶¶ 6-9. 33 Bebo Constr. Co. v. Mattox & O'Brien, P.C. (1999) 990 P.2d 78, 84–85; See also, Sunny Acres Villa, Inc. v. Cooper (2001) 25 P.3d 44, 47. Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 7 of 16 Page 8 18. First, the issue sought to be precluded in this current motion for partial summary judgment is that Defendant Hecht is liable to Ms. Warfel for intentionally perpetrating harmful contact upon Ms. Warfel’s person, which caused both apprehension and damage to Ms. Warfel. The issue for summary judgment is whether Defendant Hecht committed civil assault and battery against Ms. Warfel. 19. An actor is subject to liability to another for battery if he or she acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and a harmful or offensive contact with the person of the other directly or indirectly results.34 Similarly, a person is liable for assault if: (1) they acted either with intent of making a contact with the person of the plaintiff or with the intent of putting the plaintiff in apprehension of such a contact; (2) the plaintiff was placed in apprehension of an imminent contact with his or her person by the conduct of the actor; and (3) such contact was or appeared to be harmful or offensive.”35 The issues adjudicated in the prior state court case are identical to the current issues regarding Defendant Hecht’s assault and battery of Ms. Warfel and the factual basis is the same. 34 Hall v. McBryde By & Through McBryde, 919 P.2d 910, 913–14 (Colo. App. 1996) (citing Restatement (Second) of Torts §§ 13, 18 (1965); W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser & Keeton on the Law of Torts § 9 (5th ed.1985); see Whitley v. Andersen, 37 Colo.App. 486, 551 P.2d 1083 (1976), aff'd, 194 Colo. 87, 570 P.2d 525 (1977); CJI–Civ.3d 20:5 (1989)). 35 Adams v. Corrections Corp. of America, 187 P.3d 1190, 1198 (Colo.App. 2008). Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 8 of 16 Page 9 20. In the prior state court criminal matter to which Defendant Hecht pleaded guilty to committing domestic violence against Ms. Warfel, Defendant Hecht plead guilty to harassment with an underlying factual basis of domestic violence.36 Specifically, Defendant Hecht plead guilty to the fact that, “with intent to harass, annoy, or alarm another person, [he] struck, shoved, kicked, or otherwise touched another person or subject another person to physical contact. . . .”37 The following table compares the criminal elements of harassment, as well as the add-on charge of domestic violence, to which Defendant Hecht has pleaded guilty, to the current claims for civil assault and battery. As shown by the table below, Defendant Hecht has admitted to a crime that has meet all the requisite elements of civil assault and battery. CRS 18-9-111(1)(a) (M3- underlying factual basis of domestic violence) Civil Assault Civil Battery Intent “A person commits harassment if, with intent to harass, annoy, or alarm another person . . . .”38 “[In]tent of making a contact with the person of the plaintiff or with the intent of putting the plaintiff in apprehension of such a contact. . . .”39 “[I]nten[t] to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact . . . .”40 Contact Requirement A person commits harassment if . . he or she (a) Strikes, shoves, kicks, or otherwise touches a person or subject [her] to physical contact . . . .”41 Assault does not require actual contact but merely that, “the plaintiff was placed in apprehension of an imminent contact with his or her person by the conduct of the Battery requires that, “a harmful or offensive contact with the person of the other directly or indirectly results,” from the defendant’s 36 Ex. 2, Guilty Plea N. Hecht dat ¶ 6. 37 Id. at ¶ 17. 38 CRS 18-9-111(1). 39 Adams, 187 P.3d at 1198. 40 Hall, 919 P.2d at 913–14 (citing Restatement (Second) of Torts §§ 13, 18; W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser & Keeton on the Law of Torts § 9 (5th ed.1985); see Whitley v. Andersen, 37 Colo.App. 486; CJI–Civ.3d 20:5 (1989)). 41 CRS 18-9-111(1)(a). Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 9 of 16 Page 10 defendant. . . .”42 actions.43 Harmfulness A person commits harassment if, with the intent to harass, annoy, or alarm another person, he or she: (a) Strikes, shoves, kicks, or otherwise touches a person or subject [her] to physical contact . . . .”44 “[S]uch contact was or appeared to be harmful or offensive.”45 As stated above, battery requires that, “a harmful or offensive contact with the person of the other directly or indirectly results,” from the defendant’s actions. 46 As the above table shows, Defendant Hecht has pled guilty to each of the elements of civil assault and battery. 21. Second, Defendant Hecht is the party against whom estoppel is currently asserted and is also the party who pled guilty to harassing Ms. Warfel by harmful touching in the prior proceeding.47 22. Third, there was a final judgment on the merits in the prior proceeding. Defendant Hecht specifically noted that his plea was “voluntary” and that he expressly waived his right to a trial by jury on all issues.48 There can be no dispute that Defendant Hecht’s guilty plea was a final judgment on the merits. 23. Finally, Defendant Hecht had a full and fair opportunity to litigate the issues in the prior criminal proceeding. It is settled law that a full and fair opportunity to litigate an issue requires the availability of procedures in the earlier proceeding commensurate with 42 Adams, 187 P.3d at 1198. 43 Hall, 919 P.2d at 913–14 (citing Restatement (Second) of Torts §§ 13, 18; W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser & Keeton on the Law of Torts § 9 (5th ed.1985); see Whitley v. Andersen, 37 Colo.App. 486; CJI–Civ.3d 20:5 (1989)). 44 CRS 18-9-111(1)(a). 45 Adams, 187 P.3d at 1198. 46 Hall, 919 P.2d at 913–14 (citing Restatement (Second) of Torts §§ 13, 18; W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser & Keeton on the Law of Torts § 9 (5th ed.1985); see Whitley v. Andersen, 37 Colo.App. 486; CJI–Civ.3d 20:5 (1989)). 47 Ex. 2, Guilty Plea N. Hecht, ECF No. 1-13 at ¶ 1. 48 Id. at ¶¶ 10-11. Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 10 of 16 Page 11 those in the subsequent proceeding.49 In the prior proceeding, Defendant Hecht had all the constitutional rights afforded to a criminal defendant, including the right to a jury trial, the right to due process, the right to cross-examine witnesses, the right against self- incrimination, and the right to counsel (and the means to obtain paid-for representation).50 Defendant Hecht waived those rights.51 Also, the party against whom collateral estoppel is asserted must have had the same incentive to vigorously defend itself in the previous action.52 Certainly, Defendant Hecht had the same, indeed a much greater, incentive to vigorously defend himself in the previous action, due to the possibility of both criminal fines and jail time.53 Therefore, the fourth element of collateral estoppel has been. 24. Accordingly, all elements of collateral estoppel have been met in this case, thus precluding Defendant Hecht from re-litigating the underlying facts of his assault and battery against Ms. Warfel. B. Ms. Warfel is entitled to Partial Judgment as to liability on Claim 1— Assault for the Night of Terror. 25. “To establish assault, the following elements must be proved: (1) the defendant acted either with intent of making a contact with the person of the plaintiff or with the intent of putting the plaintiff in apprehension of such a contact; (2) the plaintiff was placed in apprehension of an imminent contact with his or her person by the conduct of the defendant; and (3) such contact was or appeared to be harmful or offensive.”54 49 Maryland Cas. Co. v. Messina (1994) 874 P.2d 1058, 1062. 50 Ex. 2, Guilty Plea N. Hecht at ¶¶ 10-11. 51 Id. at ¶¶ 10-11. 52 Salida Sch. Dist. R-32-J v. Morrison (Colo. 1987) 732 P.2d 1160, 1166-67; Restatement (Second) of Judgments § 28(5)(c) & cmt. j (1982). 53 Ex. 1, Hr’g Tr. at 11:7-11. 54 Adams v. Corrections Corp. of America, 187 P.3d 1190, 1198 (Colo. App. 2008). Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 11 of 16 Page 12 26. As to the first element of assault, which is intent to make contact or intent of putting the plaintiff in apprehension of such contact, Defendant Hecht admitted to both, “THE COURT: …the charge requires that you did so with an intent to alarm or annoy [Ms. Warfel]. … THE DEFENDANT: That’s correct,”55 “you told me that you agreed that it was with the intent to alarm and annoy so I appreciate that—as part of the accountability,”56 and, “I grabbed her purse and she was attempting to leave my home and doing -- and in so doing I may have caused the strap of her purse to bruise her arm. I believed that the purse contained my property including several wristwatches and pieces of jewelry.”57 And the judge specifically noted that Defendant Hecht caused such contact as to bruise Ms. Warfel, “You did bruise her.”58 27. Regarding the second element, that Ms. Warfel was placed in apprehension of an imminent contact with her person by the conduct of Defendant Hecht, Defendant Hecht admitted that he is “accountable for” domestic violence, which entails a, “crime against a person or against property when used as a method of coercion, control, punishment, intimidation or revenge directed against that person with whom you have an intimate relationship.”59 Defendant Hecht, during his sentencing, also noted that he understood he was pleading to a charge that he took action against Ms. Warfel with the “intent to alarm or annoy” her.60 55 Ex. 1, ECF No. 1-9, Hr’g Tr. at 9:9-9:14. 56 Ex. 1, Hr’g Tr. at 25:13-16. 57 Ex. 1, Hr’g Tr. at 9:4-8. 58 Ex. 1, Hr’g Tr. at 25:10-15:13. 59 Ex. 1, Hr’g tr. at 10:16-11:6; Ex. 2, Guilty Plea N. Hecht, ECF No. 1-13 at ¶ 9. 60 Ex. 1, Hr’g Tr. at 9:9-12. Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 12 of 16 Page 13 28. Defendant Hecht also admitted to the third element of assault, that such contact was harmful. Not only was Ms. Warfel fearful of an imminent contact, such contact actually occurred, causing Ms. Warfel severe bruising.61 Accordingly, Defendant Hecht’s admissions in his guilty plea establish that Ms. Warfel is entitled to Partial Summary Judgment as to her assault claim against Defendant Hecht. C. Ms. Warfel is entitled to Partial Judgment as to liability on Claim 2— Battery for the Night of Terror. 29. Ms. Warfel has the burden to establish, by a preponderance of the evidence, that: (i) Defendant Hecht acted with intent of making contact with her or acted with knowledge that such contact would probably result; (ii) Defendant Hecht's act resulted in a contact with Ms. Warfel; and (iii) such contact was harmful or offensive.62 As is detailed below, not only can Ms. Warfel establish all elements of battery, but the doctrine of collateral estoppel also prevents Defendant Hecht from disputing Ms. Warfel’s establishment of such elements. 30. In February 24, 2016, in Colorado State Court, Defendant Hecht plead guilty to the crime of harassment, the elements of which are: (1) with intent to harass, annoy, or alarm [Ms. Warfel], (2) [Defendant Hecht] unlawfully (3) struck, shoved, kicked, touched, or subjected [Ms. Warfel] to physical contact.63 As shown by Defendant Hecht’s guilty plea, Defendant Hecht admittedly acted with the intent to make contact with Ms. Warfel and such intent resulted in physical contact that caused, among other things, bruising to Ms. Warfel’s 61 See Ex. 6, photograph of Plaintiff, WARFEL000459; See also, Ex. 1, Hr’g Tr. 9:4-9:6, 25:10-15:13 (“THE COURT:…I didn’t like I have to tell you that I may have bruised her. You did bruise her”). 62 See, e.g., Hall, 919 P.2d at 913–14. 63 Id. at ¶ 17. Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 13 of 16 Page 14 arm.64 Furthermore, the contact was harmful and done with the intent to alarm Ms. Warfel.65 In fact, Judge Fernandez Ely went much further at the sentencing hearing, commenting: “The plea to harassment is a plea of guilt and an acknowledgment by Mr. Hecht more than even in his statement here, which I didn’t like I have to tell you that I may have bruised her. You did bruise her.”66 31. Moreover, Defendant Hecht admitted that the factual basis for his crime included domestic violence, which is defined to mean: (1) an act or threatened act; (2) of violence; (3) upon a person (4) with whom the actor is or has been involved in an intimate relationship.67 The add-on charge for domestic violence firmly establishes that Defendant Hecht’s contact with Ms. Warfel was harmful, among other things. Accordingly, Defendant Hecht’s admissions in his guilty plea firmly establish each requisite element for battery. CONCLUSION 32. The evidence, as admitted by Defendant Hecht in his guilty plea in the state court case of The People v. Hecht, establishes that Ms. Warfel is entitled to summary judgment on her claims for assault and battery against Defendant Hecht for the Night of Terror, entitling her to summary judgment as to liability on both claims. SUMMARY JUDGMENT EVIDENCE • Ex. 1, ECF No. 1-9. Hr’g Tr. Feb. 24, 2016, People v. Hecht, Cause No. 2015M197, Pitkin County Court. • Ex. 2, Guilty Plea of Defendant Nikos Hecht, Feb. 24, 2016, ECF No. 1-13 at ¶ 17. • Ex. 3, Deputy Report for Incident 15P011687, WARFEL003197-3201. 64 Id. at 15. 65 Id. 66 Ex. 1, Hr’g Tr. at 25:10-15:13. 67 Ex. 2, Guilty Plea N. Hecht at ¶ 9. Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 14 of 16 Page 15 • Ex. 4, Emergency Department Note from Aspen Valley Hospital, WARFEL000551- 553. • Ex. 5, Deputy Report for Incident 15P011718, WARFEL003211 • Ex. 6, Photograph of Plaintiff, WARFEL000459. • Ex. 7, Def’t’s Resp. to RFA No. 5. • Ex. 8, Transcript of Audio Recording (Jul. 26, 2015), WARFEL000374-386. • Ex. 9, Deputy Report for Incident 15P011718, WARFEL003206-3293. • Ex. 10, Pitkin County Sheriff Call Detail Report, WARFEL003197-3201. Dated: October 24, 2016 Respectfully submitted, By /s/ Jennifer G. Altman Jennifer G. Altman, Esq. Markenzy Lapointe, Esq. BOIES, SCHILLER & FLEXNER LLP 100 SE 2nd Street, Suite 2800 Miami, FL 33131 Tel: (305) 539-8400 Fax: (305) 539-1307 jaltman@bsfllp.com mlapointe@bsfllp.com By /s/ David A. Bovino By /s/ Maria-Vittoria G. Carminati David A. Bovino, #40730 Maria-Vittoria G. Carminati BOVINO CARMINATI LLC 600 East Hopkins Ave., Ste. 301 Aspen, CO 81611 Phone: (970) 925-4445 Fax: (970) 925-5333 david@bovinolaw.com giugi@bovinolaw.com Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 15 of 16 Page 16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 24th day of October, 2016, a true and correct copy of the foregoing document was filed via the CM/ECF system, which caused it to be served upon the following by email: Counsel for Defendant, Nikos Hecht Michael D. Plachy, Esq. Douglas B. Tumminello, Esq. LEWIS ROCA ROTHGERBER CHRISTIE LLP 1200 Seventeenth Street, Suite 3000 Denver, CO 80202-5835 mplachy@lrrc.com dtumminello@lrrc.com Marci G. LaBranche David M. Tenner, Esq. Shanelle N. Kindel, Esq. RIDLEY, MCGREEVY & WINOCUR, P.C. 303 16th Street, Suite 200 Denver, CO 80202 labranche@ridleylaw.com tenner@ridleylaw.com kindel@ridleylaw.com /s/ Maria-Vittoria G. Carminati Maria-Vittoria G. Carminati Case 1:16-cv-00686-MSK-KLM Document 49 Filed 10/24/16 USDC Colorado Page 16 of 16 Exhibit 1 Case 1:16-cv-00686-MSK-KLM Document 49-1 Filed 10/24/16 USDC Colorado Page 1 of 73 COUNTY COURT, PITKIN COUNTY, STATE OF COLORADO Case No. 2015M197 TRANSCRIPT OF PLEA/SENTENCING HEARING __________________________________________________________ PEOPLE OF THE STATE OF COLORADO, Plaintiff, v. NIKOS HECHT, Defendant. __________________________________________________________ The above-entitled matter came on for hearing before the Honorable Erin Fernandez-Ely, Judge of the Ninth Judicial District, on February 24, 2016, Aspen, Colorado. APPEARANCES: For the Plaintiff: Ms. Sherry Caloia, Esq. District Attorney For the Respondent: Ms. Pamela Mackey, Esq. For the Victim: Mr. David Bovino, Esq. (The Defendant, Nikos Hecht, was present in person.) Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 1 of 72Case 1:16-cv-00686-MSK-KLM Document 49-1 Filed 10/24/16 USDC Colorado Page 2 of 73 2 WEDNESDAY, FEBRUARY 24, 2016 1 THE COURT: Case number 15M197, State of 2 Colorado v. Nikos Hecht. The parties are present. The 3 District Attorney appears in person, Sherry Caloia and Ms. 4 Mackey appears with Mr. Hecht. 5 I’ve been given a copy of a motion to amend 6 information, which I think means complaint in Count Court. 7 I don’t think I have informations in County Court so I 8 will take it to mean amended complaint adding Count 4, 9 harassment, strike, shove or kick, a Class 3 misdemeanor 10 and then the guilty plea to that charge signed by Pamela 11 Mackey and by Mr. Hecht and it’s dated today. Okay. 12 So let me ask, Ms. Caloia, other than to tender 13 this plea, is there anything else you would like to say? 14 MS. CALOIA: No, Judge, we have negotiated this 15 plea. It has been given to the victim, Ms. Warfel, in 16 this case and I do believe that she is not happy with it. 17 We are going forward with it, in any event, because we 18 think it is the appropriate plea in this case and is very 19 consistent with most misdemeanor domestic violence 20 incidents that we handle for first time. 21 THE COURT: Okay and do you have a copy of Ms. 22 Warfel’s statement that -- she sent a statement in by fax, 23 I believe -- is that right -- this morning at 9:33 a.m. 24 and I have two copies, one for each of you. 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 2 of 72Case 1:16-cv-00686-MSK-KLM Document 49-1 Filed 10/24/16 USDC Colorado Page 3 of 73 3 MS. CALOIA: Thank you. 1 THE CLERK: Judge, it was hand-delivered by a 2 legal assistant. 3 THE COURT: It was hand-delivered -- excuse me, 4 hand-delivered -- one for her is there as well. 5 And Mr. Bovino is present. Correct? 6 MR. BOVINO: That’s correct. 7 THE COURT: Okay and usually the process 8 involves the District Attorney telling what the plea is. 9 The plea is to harassment, a Class 3 misdemeanor and act 10 of domestic violence and I go through that plea with the 11 Defendant to determine whether or not it’s voluntary and 12 whether or not it’s just. I ask the factual basis 13 usually, although in County Court it’s not required unless 14 it’s a Class 1 misdemeanor, I do usually say what 15 happened, at the very least, so that I understand whether 16 or not it is a just plea. 17 MS. CALOIA: There’s a statement of the -- 18 THE COURT: -- of that in there and the factual 19 basis, and of course, I have all of the arrest warrant 20 information -- 21 MS. CALOIA: -- yes -- 22 THE COURT: -- and cases -- lots of information. 23 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 3 of 72Case 1:16-cv-00686-MSK-KLM Document 49-1 Filed 10/24/16 USDC Colorado Page 4 of 73 4 MS. MACKEY: Paragraph 15 of the request to 1 plead guilty, Your Honor, is an agreed upon factual basis 2 for the plea. 3 MS. CALOIA: It is actually Mr. Hecht’s 4 statement as to the factual basis. 5 THE COURT: All right. 6 MS. CALOIA: I would like to add to that if I 7 could. 8 THE COURT: Okay. 9 MS. CALOIA: Mr. Hecht was charged with third 10 degree assault, harassment being phone calls, and 11 menacing, I believe. I do not believe we could prove the 12 third degree assault beyond a reasonable doubt in this 13 case and I do believe that harassment, strike, shove, kick 14 is the appropriate charge and is based on the factual 15 basis outlined by Mr. Hecht in his plea. There were a 16 number of phone calls made by Mr. Hecht to Ms. Warfel. We 17 are dismissing that plea, however -- or that count of 18 harassment, Class 3 misdemeanor, for his plea of guilty to 19 harassment, strikes, kicks, shoves. There was also some 20 menacing that did occur in the form of Mr. Hecht’s verbal 21 statements to Ms. Warfel that were of a threatening 22 nature, not very pleasant and that also is being dismissed 23 for this plea to harassment misdemeanor today. 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 4 of 72Case 1:16-cv-00686-MSK-KLM Document 49-1 Filed 10/24/16 USDC Colorado Page 5 of 73 5 THE COURT: Okay and to refresh my recollection, 1 so the phone calls are being dismissed but there were 113 2 or something like that. 3 MS. CALOIA: There were quite a bit -- quite a 4 number of phone calls, yes. 5 THE COURT: Okay. All right. I would like to 6 know if Mr. Bovino intends to speak on behalf of Ms. 7 Warfel or not. And you don’t need to speak now. You can 8 listen and then participate in the sentencing part of the 9 case. 10 MR. BOVINO: Sure. 11 THE COURT: As opposed to the plea so it’s up to 12 you. Okay. All right. I do want to go over this letter 13 though and it is quite telling even though she called me 14 Judge Rodriguez-Ely instead of Judge Fernandez-Ely, it is 15 eloquent and it is articulate and it does, I think, 16 address the issue of domestic violence pretty accurately. 17 I’m going to read some of it but before I do that, I do 18 want to read this domestic violence factual basis which I 19 think is clear was drafted by the Defendant -- 20 MS. CALOIA: -- yes -- 21 THE COURT: -- not by the People. All right. 22 So -- 23 MS. MACKEY: -- may I have just a moment please? 24 THE COURT: Yes. 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 5 of 72Case 1:16-cv-00686-MSK-KLM Document 49-1 Filed 10/24/16 USDC Colorado Page 6 of 73 6 MS. CALOIA: Judge, the -- the third degree 1 assault that I said we were dismissing was based on an 2 allegation of pushing her head into the concrete or the 3 floor. I can’t prove that beyond a reasonable doubt and 4 so it’s not being used as a factual basis at all. The 5 thing that I could prove is what Mr. Hecht put in his 6 statement about the facts that evening. He grabbed her 7 purse. There was a bruise on her arm and it was domestic 8 violence because they were in an intimate relationship. I 9 do agree with the Defense in that regard. 10 The other two charges are being dismissed in 11 light of this plea. I’m sure that we disagree about them 12 but they are being dismissed in light of this plea and so 13 I just want to make that clear to the Court and Ms. Mackey 14 might have some statements about that. 15 MS. MACKEY: Yes, Your Honor. The request that 16 came from the Office of the District Attorney was that Mr. 17 Hecht plead guilty to a Class 3 misdemeanor, specifically 18 harassment, based on the fourth part of that statute, 19 which is other physical contact, the shorthand to strike, 20 shove, kick but there’s also the fourth element, which is 21 other physical contact and the suggestion of the District 22 -- the Office of the District Attorney -- the request was 23 made to plead guilty to that based upon the grabbing of 24 the purse and the strap hurting -- according to Ms. 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 6 of 72Case 1:16-cv-00686-MSK-KLM Document 49-1 Filed 10/24/16 USDC Colorado Page 7 of 73 7 Warfel, hurting her -- her arm and so it was just 1 beginning to sound like to me that we had made this up out 2 of whole cloth. This was a negotiated factual basis. It 3 began with the suggestion of the District Attorney's 4 Office and we ultimately negotiated this language. 5 THE COURT: Okay. All right. Let me just go 6 through then first seeing if the plea is voluntary and as 7 I understand it there are no sentencing concessions. Is 8 that right? 9 MS. CALOIA: That’s correct. 10 THE COURT: All right. Thank you. 11 MS. MACKEY: Yeah, it’s our understanding that 12 the Prosecution will not be asking for any jail but there 13 are no official sentencing concessions. 14 MS. CALOIA: That’s correct. 15 THE COURT: All right. 16 MS. CALOIA: That’s correct. 17 THE COURT: Thank you. Mr. Hecht, I have here a 18 guilty plea and waiver of rights indicating that today you 19 intend to plead guilty to harassment, a Class 3 20 misdemeanor. Is that correct? 21 THE DEFENDANT: That’s right. 22 THE COURT: And that you intend also to plead to 23 domestic violence. 24 THE DEFENDANT: Right. 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 7 of 72Case 1:16-cv-00686-MSK-KLM Document 49-1 Filed 10/24/16 USDC Colorado Page 8 of 73 8 THE COURT: Okay. Do you understand that by so 1 pleading you’re waiving your right to challenge the 2 charges? You’re waiving your right to a jury trial where 3 the State would have to prove the charges against you 4 beyond a reasonable doubt. Do you understand that? 5 THE DEFENDANT: I do. 6 THE COURT: Do you -- and have you consulted 7 with your attorney about this plea? 8 THE DEFENDANT: I have. 9 THE COURT: And are you happy with the services 10 of your attorney? 11 THE DEFENDANT: Yes. 12 THE COURT: Okay. Do you also understand that 13 by pleading guilty you’re waiving your right to remain 14 silent at sentencing? 15 THE DEFENDANT: I -- I -- 16 THE COURT: -- I get to ask you questions -- 17 THE DEFENDANT: -- okay -- 18 THE COURT: -- and that you should answer them 19 truthfully, if you can, and that if you don’t, I might 20 hold it against you. Those kinds of things need to be 21 pretty clear. All right. 22 And do you understand that the factual basis of 23 this plea is stipulated in this document to include that 24 -- not to include but to specifically say that you 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 8 of 72Case 1:16-cv-00686-MSK-KLM Document 49-1 Filed 10/24/16 USDC Colorado Page 9 of 73 9 subjected Ms. Warfel to physical contact, specifically -- 1 do you want to go ahead and read the rest of that for me? 2 MS. MACKEY: Just read it aloud. 3 THE DEFENDANT: I grabbed her purse and she was 4 attempting to leave my home and doing -- and in so doing I 5 may have caused the strap of her purse to bruise her arm. 6 I believed that the purse contained my property including 7 several wristwatches and pieces of jewelry. 8 THE COURT: Okay. So the plea requires -- the 9 charge requires that you did so with an intent to alarm or 10 annoy Ms. Warfel. Is that your -- 11 THE DEFENDANT: -- that’s right -- 12 THE COURT: -- understanding as well? 13 THE DEFENDANT: That’s correct. 14 THE COURT: Okay and as far as it being an act 15 of domestic violence, what is your understanding with 16 respect to that? 17 THE DEFENDANT: You want me to define domestic 18 violence or -- 19 THE COURT: -- yeah, in your words. You’re 20 pleading guilty to an act of domestic violence and what I 21 want to know is what you think you did that causes you to 22 plead guilty today. 23 THE DEFENDANT: I think that it’s an escalation 24 of conflict that is much better served to -- to ratchet 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 9 of 72 : - - - - t 49-1 Filed 10/24/16 USDC C lorado Page 10 of 73 10 back and to -- to not continue to escalate something that 1 turns out to be painful for somebody and things get broken 2 and it’s a silly situation to have happened and I’m sorry 3 for it. 4 THE COURT: All right. Are you now under the 5 influence of alcohol or drugs that would impair your 6 ability to make this plea? 7 THE DEFENDANT: No. 8 THE COURT: Let me ask you this, and listen very 9 carefully. An act of domestic violence in the statute is 10 a -- is defined as an act or threatened act of violence 11 upon a person with whom you have been involved in an 12 intimate relationship. Would you agree? 13 THE DEFENDANT: I agree with that. 14 THE COURT: Okay. It also includes any other 15 crime against a person or against property when used as a 16 method of coercion, control, punishment, intimidation or 17 revenge directed against that person with whom you have an 18 intimate relationship. Would you agree that that -- 19 THE DEFENDANT: -- I agree with that. 20 THE COURT: That is something that you are 21 accountable for. 22 THE DEFENDANT: I’ve given a lot of thought to 23 it and I feel I am. 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 10 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 11 of 73 11 THE COURT: Okay. Good. So you’re here trying 1 to be accountable -- 2 THE DEFENDANT: -- I am -- 3 THE COURT: -- for your acts of domestic 4 violence. 5 THE DEFENDANT: I am. 6 THE COURT: And finally, do you understand that 7 you can receive up to six months in the county jail and/or 8 $750 fine? She’s going to recommend no jail, but I’m not 9 bound by that. 10 THE DEFENDANT: I understand. 11 THE COURT: Do you also understand that it is 12 required that you undergo a treatment evaluation -- 13 domestic violence evaluation and complete that treatment 14 as recommended? 15 THE DEFENDANT: I’m willing to do that. 16 THE COURT: All right. The Court accepts the 17 plea as voluntary. With respect to whether or not it’s 18 just or not, is this when you would like to be heard, Mr. 19 Bovino, or would you like to be heard at sentencing? 20 Because if I accept the plea, here’s what usually happens, 21 I immediately go to sentencing. Every now and then -- 22 every now and then, I think a presentence investigation is 23 authorized -- not very often in County Court. It’s 24 something they always do in District Court. Sometimes I 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 11 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 12 of 73 12 ask for a treatment evaluation first before I go through 1 sentencing and sometimes I also request case management, 2 Mind Springs Health’s report and I don’t see Roger here 3 but Roger Adams of Mind Springs Health has reported -- did 4 he send you anything -- that he intended to be here and 5 that there was a positive test and do you know that, Ms. 6 Mackey? 7 MS. MACKEY: I do. 8 THE COURT: Okay. 9 MS. MACKEY: And I talked to Roger about it. We 10 -- we can explain that to the Court. 11 THE COURT: Okay and that there was also an 12 evaluation in that venue that was not completed. Is that 13 your understanding as well? When you have case management 14 here, we have determined that -- of course, is the client 15 isn’t willing, then we go back to the drawing board about 16 what bond is and bond conditions but if they consent to 17 the Mind Springs Health case management and are thereby 18 released, they’re also agreeing that they’ll have 19 evaluation of their drug and alcohol issues. 20 MS. MACKEY: I’ve been in regular contact with 21 Mr. Adams -- 22 THE COURT: -- and nobody’s asked -- 23 MS. MACKEY: -- he’s never said anything to me 24 about it. 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 12 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 13 of 73 13 THE COURT: Okay, so has he asked Mr. Hecht 1 about it? 2 THE DEFENDANT: I didn’t understand that that’s 3 what he was asking for and I went in twice to go -- to 4 ascertain what I was supposed to do and he never -- no one 5 was ever in at the time that I went there. 6 THE COURT: Okay. All right. So we’ll get into 7 that in a minute but you can explain -- 8 MS. MACKEY: -- sure we certainly would have 9 fixed it and he never mentioned anything to me and I’ve 10 talked to him many times over the last few months. 11 THE COURT: Okay. All right. Thank you. 12 Mr. Bovino. 13 MR. BOVINO: I -- 14 THE COURT: -- and you need to come up to the 15 podium so that we can hear you and identify yourself 16 please. 17 MR. BOVINO: Hello, Your Honor, my name is David 18 Bovino. I’m counsel for the victim, Brooke Warfel. We do 19 not believe that this is a just plea for some of the 20 reasons outlined in the victim’s letter to Your Honor. I 21 would like to state a few of them to the Court and then 22 I’d request permission to approach the bench to discuss 23 some sensitive information that the victim doesn’t want 24 necessarily in the court domain. 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 13 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 14 of 73 14 As the Court is aware, the victim did call 911 1 before the violence escalated. Mr. Hecht answered the 911 2 phone call and apparently lied to law enforcement about 3 why the call was made. The victim was held hostage at the 4 Hecht residence for more than 12 hours without an ability 5 to leave the residence. The victim’s life was threatened 6 on multiple occasions as were her friends and her family. 7 The property that was destroyed at the residence belonged 8 to the victim, not to Mr. Hecht. 9 Mr. Hecht claims that he views the situation 10 that happened as a silly situation. The victim doesn’t 11 believe there was anything silly about this situation. In 12 the aftermath of the arrest, the victim was threatened by 13 Mr. Hecht on multiple occasions, which are documented in 14 text messages including that his lawyer, Pamela Mackey, 15 would make mincemeat out of her should she cooperate with 16 law enforcement. 17 Now it’s just been brought to our attention that 18 Mr. Hecht has potentially violated his bond violations 19 with relating to the drug testing. I’m not -- this was 20 the first time that that was brought to our attention 21 although we had requested to be kept apprised of what was 22 happening. 23 Now if Your Honor would indulge me, I’d like 24 approach the bench to share some information -- 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 14 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 15 of 73 15 THE COURT: -- would you like all three of you 1 -- I think you asked me that one time in this case so if 2 all three of you want to come forward, we have a sound 3 muffler. We’ll see what -- 4 (Whereupon, the following was held at the bench 5 out of hearing of the general public in the courtroom.) 6 THE COURT: Let her come in. 7 MR. BOVINO: Sure. So in our view, and this 8 been kept out of the public domain and I think for -- for 9 good reason and one of them is we believe the District 10 Attorney didn’t believe this was relevant but the victim 11 was pregnant and carrying Mr. Hecht’s child during the 12 night of the assault. She was clearly at a -- you know -- 13 eggshell state while she was attacked and in fact, the 14 fetus was not surgically removed until almost six weeks 15 after the attack. This fact, we believe, is an 16 exaggerated circumstance which should be taken into 17 account by the Court. There’s substantial 404B evidence 18 relating to other victims of Mr. Hecht who claim that they 19 have been assaulted in extremely egregious ways. One of 20 them is -- 21 UNKNOWN FEMALE: -- I can’t hear you. 22 MR. BOVINO: One of them is a longtime Aspen 23 resident who has contacted the District Attorney’s Office 24 and alleged that Mr. Hecht had -- 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 15 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 16 of 73 16 MS. CALOIA: -- wait a minute -- 1 MS. MACKEY: -- this is wholly -- 2 MS. CALOIA: -- this is very, very inflammatory 3 -- 4 MS. MACKEY: -- this is wholly improper and it’s 5 directly opposite -- this whole notion that she’s six 6 weeks -- that she’s pregnant is not in the discovery. In 7 fact, to the contrary she’s had an abortion 8 (indiscernible). So this is all -- 9 THE COURT: -- I thought I read that somewhere 10 -- 11 MS. MACKEY: -- yes -- 12 THE COURT: -- but I don’t know where. 13 MS. CALOIA: I have no information she was 14 pregnant for six weeks afterwards -- 15 MS. MACKEY: -- I’ve never heard that -- 16 MS. CALOIA: -- I’ve never heard that and Your 17 Honor knows that if I try to put in 404B on a completely 18 unrelated and not a similar type incident you wouldn’t 19 allow it to come in. There -- I don’t have any other 404B 20 evidence to bring to the Court. I filed no motion and -- 21 THE COURT: -- I was going to say, I haven’t 22 seen a motion about that. 23 MS. CALOIA: It’s not there that I can find. 24 MS. MACKEY: So I would object to any of this. 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 16 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 17 of 73 17 THE COURT: Have you given her the information? 1 MR. BOVINO: She -- we’re aware that she is 2 aware of it -- that the -- 3 MS. CALOIA: -- I just said this judge wouldn’t 4 allow it in as 404B evidence. That’s one incidence -- one 5 -- 6 MR. BOVINO: -- we corresponded -- 7 MS. MACKEY: -- he has no place in this -- 8 MR. BOVINO: -- we corresponded with the 9 District Attorney and she told us that she refused to 10 discuss with us any 404B evidence in this case or to 11 disclose to us anything that she was aware of. 12 MS. CALOIA: That’s right. 13 THE COURT: Okay and the -- I’m having this 14 conversation here because -- 15 MR. BOVINO: -- well -- 16 THE COURT: -- instead of out there -- 17 MR. BOVINO: -- well, because a lot of this 18 information, frankly, is very sensitive and personal to 19 the victim and to the extent that it doesn’t need to be 20 broadcast to the public. I don’t think that it needs to 21 be but I do think it’s prudent to bring it to the Court’s 22 attention at this point in time. 23 THE COURT: Okay. 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 17 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 18 of 73 18 MS. CALOIA: It’s inflammatory and untrue. My 1 whole problem with this case is the provability of the 2 case because of the things that the victim is saying 3 through her attorney such as she was pregnant. The only 4 evidence I have is that she had gotten an abortion and she 5 was having complications from that abortion by bleeding on 6 the day of the incident and she went to the hospital to 7 get cleaned out, for lack of a better phrase. That’s all 8 I know and so now there’s this information, which may or 9 may not true, and quite frankly, that’s the whole problem 10 with the case. 11 MR. BOVINO: We have the medical records. The 12 victim did not release the medical records -- 13 MS. CALOIA: -- well, then my -- 14 MR. BOVINO: -- she was prepared to before 15 Michael Warren resigned. 16 MS. MACKEY: Your Honor, I object to this. 17 THE COURT: I -- I -- you’ve got to go back 18 there. Make your statements with discretion -- 19 (Whereupon, the noise buffer was turned off and 20 the following was held in open court.) 21 THE COURT: -- to protect your client. Thank 22 you. 23 MR. BOVINO: Okay. 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 18 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 19 of 73 19 THE COURT: Okay. So you object to the plea on 1 behalf of the victim, Ms. Warfel, because you don’t 2 believe it’s fair and just. 3 MR. BOVINO: Correct. 4 THE COURT: You believe that Mr. Hecht is guilty 5 of -- and I think this is clear that you believe he’s 6 guilty of a felony, that there was serious bodily injury, 7 that it should have been a second degree assault. Judge 8 Lynch has, of course, ruled on that and I think that’s 9 where we left it. So if you wanted to continue from there 10 as to Ms. Warfel’s observations about this plea and why 11 it’s not fair. 12 MR. BOVINO: Well, I think -- you know -- from 13 my initial comments does provide the gist of the objection 14 to the plea, in addition to the statements provided in Ms. 15 Warfel’s letter to this Court. 16 THE COURT: Okay. 17 MR. BOVINO: Thank you. 18 THE COURT: Thank you. All right. 19 MS. CALOIA: Judge, I would like to respond -- 20 THE COURT: -- yes -- 21 MS. CALOIA: -- to those -- uhm -- there was a 22 911 call. I know that Ms. Warfel stayed there afterwards 23 and I’m not going to say too much about that, whether Mr. 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 19 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 20 of 73 20 Hecht called them back and lied or didn’t lie, whatever 1 happened, I’m not using that. 2 As far as being held hostage for 12 hours or 3 more, that claim by the victim was only made after my 4 office informed Mr. Bovino that in order to have that kind 5 of a charge, we had to have someone being held hostage for 6 12 hours or more. Then that allegation was made. Quite 7 frankly, it wasn’t in any of the reports. It wasn’t in 8 any of her statements that she had been held there against 9 her will at any time. 10 I have, in fact, interviewed the maids that 11 helped her move out after the incident. They alleged 12 nothing to that regard and tell me that Ms. Warfel was 13 going back and forth into the house and carrying her 14 things and putting them in a car and going to her place 15 and so I just have no evidence that that particular 16 element was there. 17 As far as the damaged items, Ms. Warfel did make 18 an allegation that Mr. Hecht took her jewelry, which was 19 in some form of a bag, threw it on the floor and stomped 20 on it to ruin it. Ms. Warfel said that she had lied about 21 that to the officer, showed the officer jewelry in a bag 22 that she had and the jewelry was completely intact. 23 That’s all I know. Never saw any damaged 24 jewelry, any damaged items that somehow turned into a 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 20 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 21 of 73 21 felony at some point through the allegations of Ms. Warfel 1 through her attorney, Mr. Bovino. That -- whether that’s 2 true, I don’t know but have absolutely no evidence of that 3 and in fact, have contradictory evidence of that. 4 I also don’t have evidence of him harassing her 5 and her friends after the incident. So -- uhm -- that’s 6 what I’d like to say. 7 THE COURT: Okay. Thank you. Ms. Mackey, would 8 you like to say anything? 9 MS. MACKEY: As far as the plea being just, we 10 -- we think that it is. I obviously will have comments 11 when the Court moves forward to sentencing but I think 12 they’re better reserved for that point in time. 13 THE COURT: Okay. Thank you and then I’m going 14 to read this letter to the extent that it has something to 15 do with the acceptance of the plea. I think this is a 16 good time to read it. 17 She says that she just learned that Nikos Hecht 18 will be entering a change of plea on February 24 in 19 response to a plea deal offered by the Pitkin County 20 District Attorney’s Office. Unfortunately, she’s 21 travelling and wanted me to understand the significance of 22 the events experienced on July 26 and 27 at the hands of 23 Nikos Hecht. This was not an isolated incidences -- 24 incident as there were others like it in jurisdictions in 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 21 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 22 of 73 22 and out of -- in and outside of Pitkin County including 1 Eagle County and elsewhere where Mr. Hecht physically 2 assaulted me such that I feared for my own life when he 3 was belligerent. Those physical assaults were typically 4 accompanied by a barrage of humiliating and degrading 5 verbal attacks, the sting of which was often as horrific 6 as the physical ones. 7 The audio tapes provided to the District 8 Attorney capture only a small fraction of the harrowing 9 experiences where I was threatened by Nikos Hecht. If the 10 Court has not listened to the audio tapes that I provided, 11 I would hope that Your Honor would do so before Mr. Hecht 12 is sentenced because they would provide a glimpse into the 13 mind of Mr. Hecht and it is quite different from the 14 picture that he would play to the Court. He is a very 15 violent and abusive person and I fell deeply in love with 16 him but his mental and physical abuse could only be 17 suppressed for a short time. It was a continuous cycle of 18 abuse. I have lived in constant fear, was forced to leave 19 Aspen, a city that I call home, and have been forced to 20 change my life completely because of the fear of running 21 into him and the violence that could lead to. I also fear 22 for the safety of my family who he has also threatened he 23 would harm. 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 22 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 23 of 73 23 As the victim here, I must confess this process 1 has been both frustrating and disappointing. While I will 2 not repeat the words of my attorneys in their various 3 filings, as I’m sure Your Honor is familiar with them, I 4 do not believe that the District Attorney adequately 5 protected my interests or those of others in this 6 community that will likely fall prey to Mr. Hecht. The 7 unfortunate fact is that Mr. Hecht enjoys abusing women 8 and because of the favorable treatment he has gotten from 9 the District Attorney's Office through his influence and 10 wealth, he will continue to abuse women. What is even 11 more troubling is that the District Attorney is aware of 12 that history and yet decided to treat Mr. Hecht with 13 deference. 14 This Court has an opportunity to hold Mr. Hecht 15 accountable for his actions. I hope that the Court, in 16 fact, takes a stand and lets Mr. Hecht know that his 17 behavior towards women is not acceptable and punishes him 18 accordingly. Otherwise, Mr. Hecht will continue to 19 believe that he can get away with his violent and 20 reprehensible behavior towards women. Thank you very 21 much, sincerely, Brooke Warren Warfel. 22 I read this letter as resignation on her part 23 that there is a plea and that I’m going to accept it. I 24 read it to address the sentence more than the plea because 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 23 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 24 of 73 24 we all know that plea bargains are an essential part of 1 the criminal process and in order to avoid a trial where 2 evidence is presented in a way that sometimes is 3 surprising to everyone involved and in a way that is 4 detrimental to them. Actually, the whole process can be, 5 not abusive, but traumatic. It can continue with the 6 trauma for everyone. 7 Ms. Caloia certainly knows that and Ms. Mackey 8 certainly knows that. I don’t know if Mr. Hecht knows 9 that but anybody in the law enforcement and judicial 10 system knows that plea bargains are made every day and 11 they are usually to accomplish the goal of a addressing 12 the harm done and to have someone be accountable for what 13 they have done. 14 I read the arrest warrant and to me, it was a 15 night of terror. It was a night of terror that lasted for 16 two days. It was indicative of a pattern, I thought, in 17 reading it. One of the statements that -- well, and then 18 there was a retraction, which is also very typical in the 19 cycle of abuse and blaming the victim and all of those 20 things that we talk about in this case, we talk about in 21 every single case. There was a time when domestic 22 violence wasn’t even prosecuted because the next day the 23 wife would say, I need the money. I have three children. 24 Please, I take it all back. Please, I can’t live without 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 24 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 25 of 73 25 support and the cycle of violence usually includes, not 1 just the retraction for everything to be settled but the 2 flower and the roses and the I’m so sorry and the makeup. 3 It’s a complex field. It really is and it’s changing 4 times that have brought us here in a good way -- in a good 5 way because having been a prosecutor 35 years ago, I can 6 tell you it was a -- it was a tough situation where people 7 were getting hurt, hurt, hurt, hurt and nothing anybody 8 could do about it. 9 The plea to harassment is a plea of guilt and an 10 acknowledgement by Mr. Hecht more than even in his 11 statement here, which I didn’t like I have to tell you 12 that I may have bruised her. You did bruise her. I may 13 have wanted to -- well, you told me that you agreed that 14 it was with the intent to alarm and annoy so I appreciate 15 that -- as part of the accountability. 16 I think the obsessive nature of -- of the power 17 and control and the abuse that you exhibited in what I 18 have as the transcript. I haven’t heard it but -- and the 19 113 phone calls, I said this before, is indicative of 20 significant drug abuse as well. 21 Am I going to accept this plea? I am. I’m 22 going to accept this plea because it is better than a 23 trial. It just is. It is better that we -- everybody, 24 especially Ms. Warfel, is able to move on with her life, 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 25 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 26 of 73 26 not being under a microscope, not being blamed for being 1 abused, which is kind of what’s happened and it’s 2 sickening and I don’t even think it was Mr. Hecht’s doing. 3 I think it was the process. I don’t think he deliberately 4 went out to smear her in the newspapers but certainly it 5 looked like that’s what happened and it’s a shame. It’s a 6 real shame. 7 Sometimes I wish that the process was quicker 8 and faster and people could come in and say -- you know -- 9 I did it. Let me make amends. Let me make amends. Let 10 me change what I’ve done and maybe you’d still be 11 together. I don’t know if that was the process. The -- 12 the -- I fully believe that you helped her right the 13 retraction and the statements. I just fully believe that. 14 I fully believe that you said, thanks, Brooke, I’m going 15 to serve a mandatory 10 years if you tell them and then it 16 runs off the screen and I’m like what? What? What is it 17 that she was going to tell that was a mandatory 10 years? 18 Drug charges have mandatory 10 years. Sexual assault has 19 some mandatory penalties. I just don’t know what it is. 20 I don’t know if you’re willing to tell me but that’s, 21 like, what is going on in that relationship. 22 Do you want to tell me what was off the screen 23 or -- 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 26 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 27 of 73 27 THE DEFENDANT: Actually, I honestly don’t what 1 -- 2 THE COURT: -- what that reference was back then 3 -- 4 THE DEFENDANT: -- no, I don’t what is -- what 5 10 years represents for various crimes. I’m not even -- 6 THE COURT: -- for you. Why did -- did you say 7 that? It says that the police heard this on an audio. 8 MS. CALOIA: No, it was in a text message. 9 THE DEFENDANT: I don’t -- 10 THE COURT: -- it was a text message. 11 MS. CALOIA: That’s where you read it. 12 THE COURT: That’s why it would run off the 13 screen. Right. That makes sense. 14 Anyway, do you admit that this was a night of 15 terror? Was it more than just pulling her -- her -- uhm 16 -- purse? 17 MS. MACKEY: Your Honor, he’s admitted to the 18 factual basis that we agreed upon and the other charges 19 have been dismissed. 20 THE COURT: Well, they will be if I accept it. 21 MS. MACKEY: Yeah, if you accept the plea which 22 you’ve indicated that you will and so, to the extent that 23 you -- you know -- we’re talking about the factual basis 24 for this plea, I think that’s appropriate but the 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 27 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 28 of 73 28 dismissed charges, her allegations, which quite frankly 1 have been all over the board, I mean I just don’t think 2 that’s appropriate here. For the domestic violence 3 counselor, for treatment and that sort of thing, 4 absolutely, but to have him -- you know -- in open court 5 engage in this, I just don’t think it’s appropriate given 6 what the plea is and that if the Court’s going to accept 7 this, as you’ve indicated, the other charges were 8 dismissed. 9 THE COURT: Okay. Okay. I will accept the 10 plea. Let’s go to sentencing. Ms. Caloia. 11 MS. CALOIA: Judge, obviously, these two had a 12 contentious relationship and it culminated in this 13 incident in which, I hope Mr. Hecht agrees, was 14 inappropriate on his part. I’m not sure if it was a night 15 of terror or an hour of terror but there were some very 16 inappropriate things that were said and done. However, 17 this is not unusual or different. It is fairly typical of 18 a domestic violence situation that people do get 19 themselves into and I do believe that sex -- domestic 20 violence treatment is appropriate. The evaluator will 21 make the determination of the number of weeks that he 22 needs to attend based on the evaluation and he needs to 23 complete those and participate in those. 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 28 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 29 of 73 29 As far as anything else, I’m going to leave that 1 up to the Court as far as whether there’s drug and 2 alcohol. I think drugs are a problem for Mr. Hecht. He, 3 more than anybody, should recognize the problem and where 4 it has gotten him but I’m going to leave that up to the 5 Court as far as how the Court wants to handle that. 6 THE COURT: Okay. Thank you. 7 Ms. Mackey. 8 MS. MACKEY: Thank you, Your Honor. Your Honor, 9 I’m a little disturb that the Court has taken as its point 10 of reference the most extreme statement by Ms. Warfel, a 11 statement actually crafted by her lawyers in large part. 12 This is a case that has enormous proof problems for the DA 13 because Ms. Warfel has told so many different stories and 14 I really would ask the Court not to lose sight of that and 15 yes, I understand the cycle of violence. I understand the 16 cycle of retraction but there’s also things that cause 17 people to change their story which they’re not telling the 18 entire truth. 19 The fact of the matter here is that Ms. Warfel 20 claimed that she was pushed to the ground and sustained a 21 head injury. The deputy that took the statement looked 22 for that head injury. There was none. As Ms. Caloia 23 indicated, she interviewed the two maids that helped Ms. 24 Warfel move out of Mr. Hecht’s home and into her own 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 29 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 30 of 73 30 apartment, an apartment that she had throughout her 1 relationship with Mr. Hecht, a process that took hours to 2 move from one to the other. At no time did she indicate 3 that she was injured to either of the maids and one of 4 those maids had actually worked for Ms. Warfel long before 5 she had worked for both Mr. Warfel -- Ms. Warfel and Mr. 6 Hecht so her loyalty was to Ms. Warfel. Never saw any 7 injury, never heard any complaint of any injury, never 8 sought medical help during the hours that it took to move 9 from one residence to the other. 10 You have the factual basis before you that we 11 have agreed upon with the Office of the District Attorney. 12 It captures what was happening on July 26th and that is 13 Ms. Warfel was leaving. She was taking with her a large 14 pouch that Mr. Hecht believed contained jewelry although 15 she claims at one point it was damaged, at another point 16 she shows that jewelry and there’s no damage to it -- one 17 of the many contradictory stories that we have in this -- 18 in this case and he believed, at the time, that there were 19 wristwatches and other heirloom pieces in that purse. He 20 tried to get it, pulled on her, pulled the strap on her 21 arm and it appears that there’s a bruise in that area. 22 Those pieces remain missing to this day. They are gone 23 from Mr. Hecht’s house. They have not been returned 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 30 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 31 of 73 31 despite requests. They’re not there. We assume that 1 they’re in the possession of Ms. Warfel. 2 The Court said in its remarks when people are 3 hurt, hurt, hurt -- uhm -- domestic violence is absolutely 4 devastating. I understand that and there were for many 5 years. I’m the same vintage as the Court, where domestic 6 violence was not properly prosecuted but in this case, 7 other than the bruise on the arm, there is no indication 8 of injury. That’s why the District Attorney really had 9 to, under her ethical obligation, dismiss the third degree 10 assault. 11 As the Court knows -- uhm -- let me -- once 12 again, leap back to what the Court said, which is it would 13 be lovely to have these matters quickly resolved. From 14 Mr. Hecht’s point of view, we have very quickly tried to 15 resolve this case. We set it for trial on the very first 16 instance because she didn’t have any offer and we tried to 17 move this towards resolution as quickly as possible. We 18 were prohibited from doing that because of Ms. Warfel’s 19 agitation for a special prosecutor, both in the District 20 Court and in the County Court. The moment this Court 21 ruled that the special prosecutor would not be appointed 22 with regard to the County Court matter, I e-mailed Ms. 23 Caloia. We resumed plea negotiations and that’s what 24 brings us here today. So we have not dragged our feet, 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 31 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 32 of 73 32 not in any way, shape or form but our hands were tied. We 1 couldn’t do anything as long as those requests were 2 pending. 3 As the Court may know from the District Court 4 case, and certainly what the Court knows from this case in 5 reviewing the police reports and lots of other material 6 that has been provided to the Court, there was initial 7 reluctance on behalf of Ms. Warfel to file this suit -- to 8 participate in the -- I’m sorry -- in the filing of 9 charges. She objected to that strenuously. Once those 10 charges were filed, I received a call from Mr. Bovino and 11 within in 90 seconds of being on the phone, he asked me 12 how I wanted to settle the civil suit. There was no civil 13 suit. That was code for what were we willing to pay Ms. 14 Warfel. That was in August of 2015. I refused to 15 participate in that conversation. Mr. Hecht hired civil 16 counsel and that resulted in filings in the District 17 Court, which the Court may or may not have reviewed. 18 This was an incredibly unfortunate Sunday in the 19 life of Mr. Hecht and Ms. Warfel. We have tried to 20 resolve it quickly. We’ve been stymied by that. The 21 moment we were able to, we are here trying to resolve it 22 to avoid exactly what the Court has alluded to which is a 23 painful process, days in this courtroom, exposing people’s 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 32 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 33 of 73 33 most private actions and thoughts. It’s miserable. We’ve 1 been through that. They’re awful. 2 Mr. Hecht has taken responsibility. He’s always 3 taken responsibility in this. He’s accountable for it. 4 He’s here to enter his plea to what he believes, based on 5 being there, happened on July 26th. I think it’s an 6 appropriate resolution to a very unfortunate circumstance. 7 Domestic violence counseling we know the Court will order 8 it -- you have to by statute -- the evaluation and 9 counseling. Mr. Hecht has already asked me to contact 10 people to begin that process. I have done that. 11 He has been on monitored sobriety since mid-12 October of 2015, four months and as the Court indicated, 13 Mr. Adams reported to me, as well as it sounds like to the 14 Court, that there was one positive UA. That was on 15 January 13th. The UA on the 11th was negative and the UA 16 on the 14th was negative. Mr. Hecht has a legitimate 17 prescription which is on file with Mind Springs for 18 lidocaine. It’s a patch that he uses for back pain on an 19 as needed basis. His back was acting up. He had done -- 20 he had put that patch on. 21 If the Court looks at the screen that’s done, it 22 says specifically that this is merely a screen. It 23 doesn’t tell you what exactly is being tested for and if 24 you want to know the precise substance then you have to do 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 33 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 34 of 73 34 a gas chromatograph mass spectrometry to drill down on 1 that. I checked with the toxicologist, Kathy Verdeal, and 2 asked her could lidocaine give you a positive for cocaine 3 and she said yes, absolutely, that can happen. You would 4 have to run the gas chromatograph in order to tell. So 5 Mr. Adams was not concerned about the positive UA on the 6 13th and so there was no revocation for that in large part 7 because the next day it was negative, so -- as I 8 understand it from him. 9 I assume that part of what the Court will order 10 will be continued to have no contact with Ms. Warfel. We 11 welcome that. There is no desire on behalf of Mr. Hecht 12 to contact Ms. Warfel in any way although the Court has 13 mentioned restorative justice and Mr. Hecht has asked me 14 about that process and would welcome it personally, given 15 the history of this case, I’m not sure that it would be 16 very productive. If the Court wants us to try, we most 17 certainly will. 18 There will be ongoing contact at the conclusion 19 of this case, not through Mr. Hecht and Ms. Warfel but 20 their lawyers. He has property that he needs returned to 21 him. I’ve asked everybody to wait until this case was 22 over but she has a vehicle. She has jewelry. She has 23 lots of things that belong to Mr. Hecht that he needs to 24 get back and that will be negotiated through the civil 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 34 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 35 of 73 35 lawyers with whoever chooses to represent Ms. Warfel on 1 that matter but that will not happen directly between -- 2 between them but I did want to alert the Court to that 3 that is going to be ongoing. 4 Your Honor, in short, I would ask that the Court 5 impose a probationary sentence in this case. Mr. Hecht 6 has no criminal history. This is a Class 3 misdemeanor. 7 This is the first time before the Court. He will, I can 8 assure the Court, participate meaningfully in the domestic 9 violence counseling that is required -- if it is required 10 after an evaluation. 11 I’d like the Court to take into account that he 12 has already been on four months of monitored sobriety and 13 with -- except for the one positive on January 13th that 14 I’ve already spoke to -- many, many others -- I didn’t 15 count them but I think there were in excess of 25 or 30 16 random UAs have been negative. So all this talk about him 17 being a drug addict and drugs and alcohol being a problem, 18 well, not according to the last four months of tests and 19 that’s significant. They’ve been random. They’ve been 20 administered by an agency that the Court trusts and uses 21 on a regular basis and there’s no indication in the last 22 four months that it’s a problem so he has not missed any. 23 He’s done what he’s required to and there’s been no effort 24 -- no even question by Mr. Adams that there has been 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 35 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 36 of 73 36 noncompliance with that. I’ve been in contact with him on 1 a regular basis, called him when we got the January 13th. 2 We talked about that. So to the extent that there are 3 issues at Mind Springs about this drug and alcohol 4 evaluation, it just was not brought to my attention. I 5 don’t think my client understood it. We’ll be happy to do 6 whatever the Court needs on that and I’ll follow through 7 and make sure it gets done. I just was not aware of it. 8 So, in closing, Your Honor, I would ask that a 9 probationary sentence be granted with the domestic 10 violence evaluation and whatever treatment is ordered and 11 that both parties be allowed to move on at least from this 12 criminal case and begin the healing there. 13 The civil wrangle appears not to be close to 14 resolution on either side. Thank you, Your Honor. 15 THE COURT: And was she his fiancée or not? Is 16 that something I read somewhere that I -- in the paper or 17 was she engaged to be married to Mr. Hecht? 18 MS. MACKEY: She certainly believed that she was 19 his fiancée. There was a trip planned around that. It 20 was sort of a moving target I think would be the best to 21 say but I think she truly believed that. I don’t take 22 issue with her belief on that at all. 23 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 36 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 37 of 73 37 THE COURT: All right. Thank you. Mr. 1 Peterson, are you sure Mr. Adams didn’t send you an e-2 mail? 3 THE CLERK: No, I do not have any e-mails from 4 him. 5 THE COURT: Okay. 6 THE CLERK: Nor do I have any reports that have 7 been filed with the Court. 8 THE COURT: All right. Thank you. Mr. Bovino, 9 did you want to say anything about sentencing? 10 MR. BOVINO: Yes, Your Honor. So in law school 11 I think it was probably in my first day of law school we 12 learned that if you don’t -- if you don’t have the facts, 13 argue the law. If you don’t have the law, argue the 14 facts. If you don’t have the law or the facts, attack the 15 victim. I think what we’ve just heard from interestingly 16 both the District Attorney to a certain degree and from 17 Ms. Mackey was manifestation of that doctrine. 18 Brooke was in love with Nikos Hecht. He, 19 throughout the course of her relationship, was effectively 20 and essentially isolating Brooke, cutting her off to have 21 anything communications with her family or friends. She 22 was unable to attend and be a bridesmaid in her best 23 friend’s wedding because Mr. Hecht wouldn’t allow it. She 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 37 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 38 of 73 38 was effectively held prisoner in his home and her entire 1 spirit faded over the course of her relationship. 2 In the immediate days following the arrest when 3 there was this retraction by the victim, it was -- it 4 subsequently became clear through her process of 5 reunification with her family and her friends and the 6 people in the community who she interacted with that she 7 was suffering from the classic Stockholm’s Syndrome, 8 feelings towards Mr. Hecht -- in other words identifying 9 with him and trying to understand and justify his actions 10 towards her which were not confined to what happened on 11 the night of this. 12 I apologize for that, Your Honor. I thought it 13 was off. 14 THE COURT: You’re supposed to throw it on the 15 ground and stamp on it. 16 MS. CALOIA: We need a 12-year-old here. 17 MR. BOVINO: The actions and the events that 18 took place on the nights of July 27th and 28th were not a 19 confined incident. There’s substantial witness testimony 20 from the people who work for Mr. Hecht in his home, in 21 addition to family members and friend of Brooke who were 22 essentially totally cut off from being able to have any 23 communication with her but did have a brief window into 24 this relationship that she was in a very bad spot. In 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 38 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 39 of 73 39 fact, it’s worth pointing out to the Court that it was not 1 Brooke, the victim, who triggered or initiated the arrest 2 of Mr. Hecht. In fact, it was her therapist, Perrin -- 3 Dr. Perrin Elisha, who -- she had been treating Ms. Warfel 4 who was so concerned about what she had heard in those 5 treatment sessions that she called law enforcement and 6 requested a welfare check. 7 Additionally, Ms. Warfel’s friend, who was 8 provided with a very brief snippet of some audio tape in 9 which Mr. Hecht can be heard to be choking Ms. Warfel so 10 much that she -- 11 MS. MACKEY: -- Your Honor, I just object to 12 this. It’s just not what is in the record and he doesn’t 13 get to make this up out of whole cloth. That’s not been 14 produced to us. That’s just not true. 15 MR. BOVINO: It is true. It’s in the record. 16 MS. MACKEY: It’s not. 17 MR. BOVINO: It’s on the audio tapes. If you 18 hand the -- if you hear the transcripts you can see it. 19 If you listen to the audio tapes, you can hear her gasping 20 for -- for breath. If you read the text messages, you 21 hear Mr. Hecht telling Brooke to tell law enforcement that 22 the choking was just some kinky thing between us and that 23 it wasn’t actually some sort of act of control or 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 39 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 40 of 73 40 violence. So when Ms. Mackey says that it’s not in the 1 record, I’m not sure what record she’s referring to. 2 MS. MACKEY: Your Honor, we’re trying to avoid a 3 trial and having all of this dirty laundry aired and we 4 can contest the record. We’re trying not to do that for 5 (indiscernible) and it’s just wildly inappropriate to get 6 up here and be testifying about contested information and 7 record. 8 MR. BOVINO: Ms. Mackey just said it wasn’t in 9 the record. 10 MS. MACKEY: Contested information that’s not in 11 the record. I stand corrected. 12 THE COURT: I think what Mr. Bovino is trying to 13 do is say that his client is credible, that there is 14 evidence that supports her credibility. The whole issue 15 is -- uhm -- for the trial would be whether or not what 16 happened as she says happened and you have -- I’m glad you 17 pointed out the 911 call was made by somebody else. Is 18 that what you’re saying -- by Elisha Perrin or Perrin 19 Elisha? 20 MR. BOVINO: The 911 call was initially -- there 21 was a 911 call placed from Mr. Hecht’s residence by Ms. 22 Warfel at which point the phone went dead and you can 23 listen to the 911 records. Law enforcement called back 24 the Hecht residence. Mr. Hecht answered the phone and 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 40 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 41 of 73 41 said that he was having some problems with his alarm and 1 that there was no need for anyone to come to the house. 2 So had he not lied to law enforcement, this whole night of 3 terror could have probably been avoided because law 4 enforcement would have come to his house. 5 Subsequently, when she was in fear for her life, 6 after a number of threats were made and physical violence 7 took place there was audio recording on her phone which 8 you have heard or at least in the transcript from which 9 was texted to her friend Rochelle Cory who listened to the 10 tape and immediately call the Aspen Police Department and 11 sent them the tape, which I believe ultimately made it to 12 your desk when you made the decision to execute the arrest 13 warrant. Additionally Dr. Perrin Elisha, Brooke’s 14 psychiatrist, made -- without any knowledge of any of what 15 was going on, based on her therapy sessions and 16 consultations with Brooke -- placed a welfare check 17 because she was concerned that Brooke was in a 18 relationship where domestic violence was escalating. She 19 was concerned for her wellbeing. 20 So the 911 call that was placed by Brooke -- uhm 21 -- when it was responded to by law enforcement, Mr. Hecht 22 lied and I don’t think that’s disputed by anyone because 23 all you need to do is listen to the 911 call, which is 24 part of the record. I think that, in and of itself, is a 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 41 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 42 of 73 42 felony to lie to law enforcement when 911 is called but 1 I’m not going to be the authority on that issue. I’ll 2 leave that to the District Attorney. 3 With regard to Ms. Mackey’s contention that 4 there’s going to be no more contact between Mr. Hecht and 5 Ms. Warfel, we really do need to take that at grain of 6 salt. Ever since this process or action was initiated by 7 the District Attorney’s Office and law enforcement, which 8 Brooke initially requested that they not -- that that not 9 happen because she was concerned about retaliation which 10 was threatened by Mr. Hecht. Brooke, her family, meaning 11 her mother, her father, her sister, every single person 12 who she’s ever dated in her life, everyone that she’s 13 knows in the community has been bombarded by private 14 investigators snooping into her life, either calling at 15 the -- you know -- at the behest of Ms. Mackey or Mr. 16 Hecht’s lawyers and it hasn’t stopped. It’s still going 17 on today and it will continue to go on. 18 Ms. Mackey speaks about a civil action and makes 19 these accusations that there was some sort of a request 20 for money in exchange for the dismissal of charges. 21 That’s just not true. In fact, before charges were 22 actually brought, interestingly enough, by the District 23 Attorney's Office, Brooke was provided with Ms. Mackey’s 24 cellphone number -- and these are in the text messages -- 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 42 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 43 of 73 43 and Ms. Mackey, the criminal defense lawyer for Mr. Hecht, 1 was texting back and forth with the victim and then 2 actually requested that she call her on the phone, which 3 she did and they had a conversation and it’s my 4 understanding, according to Brooke, that Ms. Mackey says, 5 what do you -- what do you want? What needs to be done to 6 make this go away and I just find it palpably improper 7 that a criminal defense lawyer is going to be talking with 8 the victim of domestic violence before an arrest is made. 9 It just -- it smells bad and if one were to look carefully 10 at the text messages, in the aftermath of the night of 11 terror as you referred to it, they’re very telling in 12 explaining the timeline of events which ultimately led to 13 the arrest and the actions that were taken by Mr. Hecht 14 and his Counsel subsequent to that arrest, which included 15 -- I think two or three weeks transpired -- demand letters 16 from civil lawyers to Brooke making all sorts of demands 17 on property that belonged to her; that she was going to be 18 sued and that they intend to file lawsuit and I have no -- 19 no doubt that Mr. Hecht’s lawyers -- his civil lawyers and 20 the ones that I believed were retained and working with 21 Ms. Mackey will continue to endeavor to harass and re-22 victimize Brooke once this is all resolved. Whether Mr. 23 Hecht gets probation or some sort of slap on wrist, for 24 Miss -- for Brooke it’s not over. He’s made himself very 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 43 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 44 of 73 44 clear that she has messed with the wrong person and I 1 believe that it’s very unfortunate for her that what’s 2 happening here today isn’t the end but probably just the 3 beginning of a much longer draining re-victimization of 4 what’s already happened to her during the course of her 5 relationship with Mr. Hecht. 6 With regard to the plea, I believe that Your 7 Honor is very familiar with the facts and circumstances in 8 this case and we will essentially defer to Your Honor’s 9 good judgement in deciding what an appropriate punishment 10 is. 11 THE COURT: Let me just ask you one thing. The 12 bump on the back of the head -- is there any explanation 13 why there wasn’t a bump? 14 MR. BOVINO: Well, you know I see Monique 15 Merritt -- Deputy Monique Merritt sitting over here. 16 She’s been here since the beginning and I’ve always been 17 interested in what her thoughts are in connection with 18 this case. The -- Brooke fell on a cement floor when she 19 was trying to leave the home and hit her head. 20 Afterwards, as you know, she went to the hospital because 21 of a number of circumstances, which I’m not going to go 22 into right now, one of them being the assault -- uhm -- 23 and she continued to communicate with Mr. Hecht in the 24 aftermath and he asked her to come over to his house. She 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 44 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 45 of 73 45 didn’t want to go -- you know -- finally he cajoled her to 1 go over to his house and he essentially told her if you 2 can make this go away -- uhm -- we’re going to live a 3 wonderful life and -- excuse me -- and we’re going to go 4 be ambassadors for Hilary Clinton and go on a boat with 5 Bono from U2 and do all these wonderful things and, like I 6 said, she was really in that Stockholm Syndrome state at 7 the beginning but she did do everything that she could to 8 protect him and one of the things with regard to the 9 allegation of bump on the head is -- my understanding is 10 Deputy Monique Merritt went to her apartment and checked 11 her and checked her head and Brooke said there’s nothing 12 on my head and Deputy Monique Merritt confirmed that she 13 couldn’t feel anything on her head. I’ll just note that 14 she did hit her head very hard, according to her, and I 15 believe her, and that at the time when she was examined by 16 Deputy Merritt, she was trying to protect Mr. Hecht from 17 getting arrested. So I do believe she sustained -- you 18 know -- the injury to her head. She could have had a 19 concussion. We don’t know. She refused and did not have 20 my understanding is a CAT scan but she was extremely 21 disoriented in the -- in the hours and days after this 22 assault and she was also in an extremely weakened state 23 when she was attacked. 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 45 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 46 of 73 46 THE COURT: Let me ask you about the pouch of 1 jewelry, the allegation in the warrant is that he removed 2 a pouch of Warfel’s jewelry from her purse, emptied the 3 contents on the floor and smashed them and I think I heard 4 the District Attorney say that -- and Ms. Mackey, that 5 there were no smashed jewels. Is that what she remembers 6 as well and -- 7 MR. BOVINO: -- no, my understanding of what she 8 remembers is that all the jewels and jewelry, whatever was 9 in her pouch which belonged to her which is very clear if 10 you read the text messages, which are all in the record, 11 and Mr. Hecht says that’s yours. He smashed everything on 12 the floor in a fit of rage and destroyed that property. 13 It was clearly cleaned up before law enforcement -- you 14 know -- was on the scene to the extent that they were and 15 she never has seen any of those jewels since that point in 16 time. 17 THE COURT: And she’s been covering up is what 18 you were saying, essentially trying to make less of the 19 charges. 20 MR. BOVINO: Perhaps she was trying to do as Mr. 21 Hecht instructed her to do or else, which was make sure 22 that this could go away and -- you know -- it’s my 23 understanding that Mr. Hecht’s father was very closely 24 involved with trying to prevent this arrest from 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 46 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 47 of 73 47 happening. Members of the law firm Garfield and Hecht 1 were on the case immediately after law enforcement was 2 brought into this. 3 MS. MACKEY: Your Honor, I don’t know what that 4 has to do with anything -- 5 THE COURT: -- I agree. I agree. 6 MS. CALOIA: I never got a call from Garfield 7 and Hecht nor did my office. 8 THE COURT: Okay. On the initial arrest. 9 MS. CALOIA: On the initial and -- 10 THE COURT: -- you did for the violation of the 11 protection order issues. 12 MS. CALOIA: Yeah, one -- 13 THE COURT: -- one call only. 14 MS. CALOIA: One call, yeah. 15 MR. BOVINO: Well, I think it’s -- 16 THE COURT: -- and Ms. Mackey confirmed what I 17 said had said in my order -- I don’t know if you read it 18 -- was that that very day when the search warrant was 19 being executed -- I think that’s what it was -- Ms. Mackey 20 had indicated that she knew about the -- in other words, 21 why that was important was that it wasn’t a recent 22 fabrication. 23 MR. BOVINO: I’m not talking -- 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 47 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 48 of 73 48 THE COURT: -- she knew that before I did, 1 honestly. 2 MR. BOVINO: I wasn’t speaking -- I was speaking 3 about -- 4 THE COURT: -- about that -- just about the 5 original jewelry. 6 MR. BOVINO: Sure. Right after July 28th, 29th 7 and if Ms. Caloia was not on the scene, certainly, the 8 sheriff’s office was on the scene and certainly, there’s a 9 record of Sheriff Joe Disalvo meeting with Andrew Hecht, 10 talking about this and these were all -- all this 11 information is contained in the text messages between Mr. 12 Hecht and Brooke in the aftermath which was -- 13 MS. MACKEY: -- Your Honor, I don’t know what 14 this has to do with sentencing of my client. 15 THE COURT: I agree. 16 MR. BOVINO: Okay. 17 THE COURT: So go onto the next subject if you 18 have one or -- 19 MR. BOVINO: -- okay, yeah, so -- you know -- I 20 was basically just -- you know -- in summation, with 21 regard to the sentencing, we would -- Your Honor has a 22 good sense of what happened and that there’s more out 23 there perhaps than simply what happened on July 27th and 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 48 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 49 of 73 49 28th and we will defer to Your Honor’s good judgement in 1 making the sentencing decision. 2 THE COURT: Thank you. 3 MR. BOVINO: Thank you. 4 THE COURT: Mr. Hecht, anything you want -- you 5 want to say something, Ms. Caloia, before he does or after 6 he does. 7 MS. CALOIA: It doesn’t matter. 8 MS. MACKEY: Mr. Hecht will not make a statement 9 at this time, Your Honor. 10 THE COURT: Okay and Andrew Hecht is not here. 11 Is that right? 12 MS. MACKEY: That’s correct. 13 THE COURT: I just wanted to make sure that -- 14 of course, I know who he is and know him but he doesn’t 15 intend to be here. 16 MS. MACKEY: No, Your Honor. 17 THE COURT: Okay. Ms. Caloia. 18 MS. CALOIA: I’d just like to say that one of 19 the problems with this case was the enormous amount of 20 material that Mr. Bovino was filing with the Courts in 21 various forms and I think Mr. Bovino thinks those are all 22 in the record, which I don’t think is technically accurate 23 at this point and it certainly was unusual and led to a 24 lot of information getting out to the press because there 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 49 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 50 of 73 50 it was in black and white in the -- in the Clerk’s Office. 1 I felt that that -- uhm -- undermined our case to a large 2 degree. There were a lot of things in those pleadings 3 that were not true. There are a lot of things in the 4 affidavits that were contradictory and it certainly made 5 my job a whole lot harder than it should have been and at 6 this point, I can’t tell you what’s true and not true from 7 all of those allegations that were made in all of those 8 pleadings because I just don’t have any evidence of it at 9 all. 10 THE COURT: And you’re -- let me ask you, in the 11 arrest warrant it alludes to tape or recordings. 12 MS. CALOIA: There was a tape -- 13 THE COURT: -- and I listened to them -- 14 MS. CALOIA: -- and I listened to the tape -- 15 THE COURT: -- and they are as written in the 16 arrest warrant. 17 MS. CALOIA: And those are as written in the 18 arrest warrant, yes. 19 THE COURT: Okay. 20 MS. CALOIA: That is correct and those are the 21 statements that I alluded to as being nasty. 22 THE COURT: Nasty, is that what you said? 23 MS. CALOIA: Nasty. 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 50 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 51 of 73 51 THE COURT: All right, controlling, intimidating 1 -- 2 MS. CALOIA: -- yes -- 3 THE COURT: -- revengeful, that sort of thing. 4 MS. CALOIA: Yes. 5 THE COURT: The acts of domestic violence. 6 MS. CALOIA: Right. The jewels, the -- 7 THE COURT: -- well, the F’ing -- 8 MS. CALOIA: -- all those things -- 9 THE COURT: -- slit your S -- you know -- the 10 whole -- those -- 11 MS. CALOIA: -- right -- 12 THE COURT: -- those kinds of words. The you 13 choked me, stop, please don’t hurt me. Please, you choked 14 me. Those are heard it says. 15 MS. CALOIA: Those are heard, yes. 16 THE COURT: On the -- 17 MS. CALOIA: -- on the tape. 18 THE COURT: Ms. Mackey says that she was setting 19 him up, I guess, or pretending that this was going on but 20 those are heard recordings. 21 MS. CALOIA: Yes. 22 THE COURT: Okay. 23 MS. CALOIA: That is correct. 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 51 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 52 of 73 52 THE COURT: And on what was the other one? 1 Thanks, Brooke, I’m going to serve a mandatory 10 years. 2 That was heard. That was a text message. 3 MS. CALOIA: That was a text message. 4 THE COURT: Okay and did she actually have a 5 recant statement, a written statement? 6 MS. CALOIA: Yes. 7 THE COURT: I don’t know that I ever saw that 8 and you’re absolutely right. I don’t know what I’ve seen 9 in which case but I have been looking at the arrest 10 warrant, just so you know. That’s what I’m really 11 focusing on because that is what I consider to be reliable 12 produced by Deputy Monique Merritt -- 13 MS. CALOIA: -- yes -- 14 THE COURT: -- it says what happened at least 15 what was heard, whether it’s the truth or not, I guess is 16 another issue but it was certainly documented. 17 MS. CALOIA: Yes. 18 THE COURT: And far as restorative justice, I 19 forgot to ask Mr. Bovino. Is there any -- have you talked 20 to the victim? 21 MS. CALOIA: I have not talked to the victim. I 22 am all in favor of restorative justice. I think if 23 restorative justice was between the victim and the 24 defendant and other who are doing it it possibly could go 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 52 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 53 of 73 53 a long way. If you included attorneys in there, forget 1 it. Forget it. 2 THE COURT: Right. Okay. 3 Mr. Bovino, did you want to talk about that just 4 before I go forward? 5 MR. BOVINO: Yes, Brooke is interested in the 6 whole concept of restorative justice and she appreciated 7 it as a suggestion by Your Honor. We were hoping that -- 8 uh -- Mr. Hecht or his Counsel would have broached that 9 subject with us but based on what we’re seeing in terms of 10 actions done by Mr. Hecht through Counsel, it appears that 11 it’s just not something that they’re interested in. 12 I do just want to address a point that was made 13 Ms. Caloia, which related to the evidence that was 14 provided to the District Attorney’s Office and the 15 Sheriff’s Office and that would be that, as Your Honor 16 knows, Deputy District Attorney Michael Warren was 17 initially assigned to this case and subsequently resigned 18 for reasons -- 19 MS. MACKEY: -- Your Honor, you asked about 20 restorative justice -- 21 MS. CALOIA: -- and how is this relevant to 22 anything -- 23 MR. BOVINO: -- all of the evidence -- 24 MS. CALOIA: -- just to -- 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 53 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 54 of 73 54 MR. BOVINO: -- that she is claiming complicated 1 this case was requested -- you know -- from Mike Warren to 2 Brooke Warfel. It wasn’t brought -- 3 THE COURT: -- that she came in with stacks and 4 stacks. 5 MR. BOVINO: No. 6 THE COURT: He asked her for them, okay. 7 MR. BOVINO: Michael Warren met with her -- 8 THE COURT: -- all right -- 9 MR. BOVINO: -- and spent many hours speaking 10 with her. Mr. Caloia -- Ms. Caloia has never bothered to 11 call her and I’ve never actually spoken with Ms. Caloia 12 once, ever, except for today. 13 THE COURT: Okay. So, restorative justice is 14 something that she would be interested in. That would 15 mean the restraining order would be modified to some 16 extent to -- 17 MS. MACKEY: -- I thought he said not 18 interested. 19 THE COURT: Not interested, okay, I’m sorry. 20 MR. BOVINO: When this hearing -- 21 THE COURT: -- I’m sorry -- 22 MS. CALOIA: -- and just for the record, 23 restorative justice is not mediation. 24 THE COURT: It’s not. 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 54 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 55 of 73 55 MS. CALOIA: And so if -- 1 THE COURT: -- it’s not -- 2 MS. CALOIA: -- it has nothing to do with the 3 civil claims either way. 4 THE COURT: And we don’t have a program in place 5 that I think would be valuable in this case. I’m trying 6 very desperately -- I know you have Barb Chambliss and 7 Russ Griswell, but not really. It’s not really 8 restorative justice in a way that would work in this 9 particular case. I would agree with all of you but I just 10 did want to know what her feelings were about -- 11 MR. BOVINO: -- when the -- when the suggestion 12 was first brought to our attention by Your Honor, we were 13 very interested in it. We researched it. We listened to 14 what Ms. Mackey had to say about it and her family 15 actually having something to do with creating the 16 doctrine. Unfortunately, we just didn’t get the sense 17 that anyone else was interested in exploring that avenue, 18 so we are where we are. 19 THE COURT: Okay. All right. Thank you. 20 MS. CALOIA: The last thing I’d just like to say 21 for the record is there was an e-mail that I saw that Mr. 22 Bovino and Counsel for Mr. Hecht were engaging in an 23 exchange in which Mr. Bovino did agree to ask me to drop 24 the charges if a settlement of money could be reached. 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 55 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 56 of 73 56 MR. BOVINO: That’s 100 percent false and I’m so 1 surprised that she would actually make that statement in 2 open court and I would actually request the opportunity to 3 bring that full note exchange to Your Honor’s attention so 4 we can prove that Ms. Caloia’s statement is just 5 flagrantly false. 6 MS. CALOIA: Let’s do it -- 7 MS. MACKEY: -- oh, my gosh -- 8 THE COURT: -- well, I need to -- 9 MR. BOVINO: Let’s do it. 10 MS. CALOIA: Let’s see it. 11 THE COURT: -- I need to take a rest for a 12 minute but maybe this can shed light on that, what I -- 13 from all the other pleadings in the civil case and I did 14 read the District Court case as well. It seems that what 15 Mr. Bovino is going to say now is that that was a 16 suggestion made by not Ms. Mackey but civil counsel. 17 MR. BOVINO: They’re all working together but 18 yes. 19 THE COURT: But essentially that it was asked by 20 them for you to put that in the letter and then you 21 mistakenly did so, I guess -- 22 MR. BOVINO: -- well, first of all, that -- 23 THE COURT: -- regrettably did so -- 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 56 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 57 of 73 57 MR. BOVINO: -- that -- none of this was, first 1 of all -- you know -- as Your Honor is aware, there is 2 some very, very sensitive information about all the 3 parties in this case that is still not in the public 4 domain and there are seriously substantial civil claims 5 that we believe exist between the parties. There was 6 discussions regarding those civil claims, in particular, 7 and you’ll see by reading the full exchange that in a very 8 clever way, Mr. Hecht’s Counsel tried to reframe the 9 issues as the parties would like to go to mediation but 10 they would like to advise the District Attorney that were 11 they to go to mediation they would like the charges 12 dismissed and -- 13 MS. CALOIA: -- it didn’t say that -- 14 MR. BOVINO: -- and that’s how the e-mail 15 exchange started and it goes on and on and on and it’s 16 about a 20-page e-mail exchange and you’ll read -- you 17 know -- 18 THE COURT: -- okay, let me ask you this. Ms. 19 Warfel never has asked for jail. Is that correct, for Mr. 20 Hecht? Is that true or not? 21 MR. BOVINO: Has she -- 22 THE COURT: -- you’re not suggest -- not asking 23 that the Court impose jail. 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 57 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 58 of 73 58 MR. BOVINO: I believe she does think that Mr. 1 Hecht should go to jail. 2 THE COURT: Okay. But you didn’t say that today 3 and I’m not sure that I read it in any of the pleadings -- 4 any of the -- whatever they’re called -- 5 MR. BOVINO: -- no -- 6 THE COURT: -- affidavits or exhibits. Correct? 7 MR. BOVINO: Correct. 8 THE COURT: Okay. 9 MR. BOVINO: And as I said -- 10 THE COURT: -- she was all along trying to 11 resolve it in your mind. Of course, it’s contested by Ms. 12 Mackey, but all along she was trying to stay together 13 until -- 14 MR. BOVINO: -- until about -- 15 THE COURT: -- the newspaper and everything went 16 viral -- 17 MR. BOVINO: -- two weeks -- I think it was when 18 she got of his -- uhm -- let’s see how do I frame this -- 19 control -- when she was no longer under his control and 20 she began to reunite and reunify with her friends and 21 family and -- you know -- therapy that she realized that 22 she was totally brainwashed. I think that’s the point in 23 time where she realized that she was actually victimized. 24 Before then, I think she was actually identifying -- 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 58 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 59 of 73 59 MS. MACKEY: -- Your Honor, this is about the 1 third time we’ve gone through this. 2 THE COURT: Okay. I’m going to take five 3 minutes and let me ask you, what do you think about a 4 presentence investigation? You don’t think it’s 5 necessary. 6 MS. CALOIA: I really don’t. 7 THE COURT: Okay and you don’t either. 8 MS. MACKEY: I don’t, no. 9 THE COURT: Okay, even if I impose jail. 10 MS. MACKEY: I don’t think jail’s appropriate 11 knowing this Court as I have seen -- 12 THE COURT: -- but you understand that I can do 13 that as a condition of probation and your client 14 understands that as well. 15 MS. MACKEY: I understand that but I also know 16 that this is a very treatment-oriented court. I’ve been 17 watching you sentence people for 30 years -- uhm -- 18 THE COURT: -- 15 -- I’m not that old -- 19 MS. MACKEY: -- 15 -- right, 15. 20 THE COURT: I feel like it -- 21 MS. MACKEY: -- I’ve been doing this for 30 22 years, you’ve been doing that for 15 -- my apologies -- 15 23 years and yeah, I think that it’s abundantly clear that 24 treatment’s appropriate and consistent with what this 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 59 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 60 of 73 60 Court has done. We’re talking about a Class 3 misdemeanor 1 for someone who has no prior record and -- you know -- 2 it’s -- it’s gotten blown up because of all of this other 3 stuff that’s gone on and to my way of thinking, it 4 shouldn’t affect -- you know -- the consistency that this 5 Court has shown in being a very pro-treatment court and -- 6 you know -- not imposing jail on a Class 3 misdemeanor 7 with somebody that has no criminal history. So -- you 8 know -- I just hope that the Court is not sucked into this 9 vortex of what’s going on the civil side and all these 10 filings and that sort of thing and you look at what the 11 stipulated basis is and -- uhm -- stipulated factual basis 12 and -- 13 THE COURT: -- but let’s clear that up, whether 14 there’s a stipulate factual basis or not, I think the 15 Court can take into account what it perceives to be a 16 pattern of abuse. I think I can do that and I have made 17 it very clear that I consider this not to be an isolated 18 instance where somebody out of the blue calls 113 times. 19 I said that before. So I just wanted to -- you know -- 20 make sure everybody is on the same page that I am going to 21 take a break and I’m going to come back but that jail is 22 actually a possibility, Mr. Hecht, whether I’m treatment-23 oriented or not. It could be suspended. It could be 24 subject to certain conditions. It could be a variety of 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 60 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 61 of 73 61 methods of implementation. There’s day reporting. 1 There’s work release. There are options for this Court 2 and she’s absolutely right -- Ms. Mackey and Ms. Caloia 3 will confirm and Mr. Bovino knows it too that I am 4 treatment-oriented and I withstand criticism for it. I 5 think there was some criticism in the paper that I read 6 about yesterday about a case that wasn’t even mine about 7 an eighth DUI that did not -- and the seventh didn’t occur 8 in Pitkin County -- 9 MS. CALOIA: -- so we get blamed for it whether 10 it’s ours or not -- 11 THE COURT: -- and it was the District Court but 12 somehow Judge Ely’s friends are benefitting from this. So 13 you see what I mean and I have to say too that I -- uhm -- 14 I don’t want to punish somebody more just because they’re 15 rich and wealthy and powerful. That’s something that -- 16 you know -- concerns me as well. Is that why I think what 17 I think? It’s not really that fair either. Is this case 18 under a microscope because of that? Probably. 19 Do I think Mr. Hecht is impressed with himself 20 and his status? I think that he is and let me tell you 21 why. Not only from the arrest but in the past there has 22 been in the paper statements that are attributed to Mr. 23 Hecht such as don’t you know who I am and up in the -- uh 24 -- the hiking trail up in Snowmass. So I just -- I mean 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 61 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 62 of 73 62 I, of course, read the paper like everybody else and that 1 isn’t even a case that I had. And do I know that there’s 2 inaccurate reporting? Of course, I do. So I try very 3 hard -- you know -- keep this to what you know. Keep this 4 to what you know but I wonder -- you know -- I think that 5 he had a relationship with a woman that he loved and she 6 loved him but the way it’s painted is is it was just one 7 big using each other for other reasons and it’s, again, 8 I’m -- it’s very complicated. It’s a very complicated 9 scenario. 10 Do I have cases like this all the time? 11 Absolutely. Do I have men and women who exercise power 12 and control over each other in completely inappropriate 13 ways? Of course I do and I try to be individual and I try 14 to make a difference to those people and then even 15 sometimes when I want to impose jail -- there was one the 16 other day where the guy had a record and it was a caveman 17 kind of situation, pulling by the hair -- you know -- this 18 whole what I call nights of terror, yet he’d just had a 19 car accident. They had a small child. The mom -- you 20 know -- the woman was begging, please don’t put him in 21 jail -- you know -- so each one of your situations -- you 22 know -- strikes me in a different way, I guess, and in the 23 same way and I do want to be consistent but I do want to 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 62 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 63 of 73 63 be specific to what I think is appropriate in a particular 1 case so I’m going to take five minutes. Thank you. 2 (Whereupon, a recess was taken at 3:21:47. 3 Recording resumed at 3:35:27.) 4 THE COURT: Is -- does anybody have any 5 objection to that? 6 MS. MACKEY: I do, Your Honor. She’s a witness 7 in the case and we’re trying to avoid a trial, not calling 8 witnesses -- uhm -- and I don’t want to say anything more 9 because of -- 10 THE COURT: -- okay -- 11 MS. MACKEY: -- what could be interpreted as 12 insulting but I really do object to her -- to her coming 13 forward. 14 THE COURT: Ms. Caloia. 15 MS. CALOIA: I don’t object. 16 THE COURT: Okay. I’m going to allow Deputy 17 Merritt briefly to make her observations. 18 DEPUTY MERRITT: I will be very brief. I think 19 most points that I have to make have already been made 20 today or in the arrest warrant. I just wanted to really 21 encourage Your Honor to actually listen to the audio of 22 that night. I know there’s so much other stuff that’s 23 been brought in that’s perhaps relevant, maybe not, made a 24 big deal of but we’re really here for that night of 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 63 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 64 of 73 64 terror, as you called it, and if you listen to the audio, 1 that’s exactly what it is. It’s very different than 2 reading it in a transcript. I think if you hear it, it’s 3 unmistakable what happened that night and I just wanted to 4 ask you please to listen to it. 5 THE COURT: Okay. Thank you. 6 Well, that would delay the sentencing to listen 7 to it and I have to say that it does come alive to me -- 8 the arrest warrant -- having enough experience with these 9 kinds of cases. That’s how I began. It sounded like a 10 night of terror. I’ve said that all along. The 113 -- 11 the excessive phone calls, the screaming -- you just -- it 12 does jump out at me. I didn’t get a chance to hear it 13 because we didn’t have a trial and as everybody has 14 pointed out, the trial would have been long and protracted 15 and there would have been a lot of re-victimization, in my 16 view, of Ms. Warfel, which is what I said why I’m going to 17 accept this plea is because I don’t want that to happen. 18 I honestly don’t and I know what a good attorney Ms. 19 Mackey is and I know that she would be able to make a very 20 good case for Mr. Hecht and that’s just a fact of life. 21 So to save her and to save all of us, I guess, from -- 22 from that trauma I think this is a plea. I think it also 23 does get a conviction for Mr. Hecht, as opposed to a not 24 guilty, which is a very real possibility in the world of 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 64 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 65 of 73 65 domestic violence cases and if you had a not guilty that 1 would be oh so bad for Ms. Warfel, I think. I mean I just 2 think that would -- that’s always the risk that one takes 3 and so a sure thing is a good thing. 4 So, as far as the events, I still -- I read that 5 -- those statements that Deputy Merritt put down in the 6 affidavit and I do think it was terror. I do. I think it 7 was abusive. I think it was all the things that domestic 8 violence is about and I do hope that you get something out 9 of the treatment that is mandatory and I do hope that you 10 become a person that doesn’t abuse women. I hope that’s 11 what happens. 12 So, the Court sentence is as follows: 13 It’ll be 24 months of supervised probation. The 14 first condition shall be no violations of any federal, 15 state or municipal laws. You need to satisfactorily 16 comply with all conditions of supervised probation imposed 17 by State Probation, which can and probably will, include 18 monitored abstinence. 19 The mandatory protection order remains in effect 20 throughout the term of probation unless modified, 21 obviously, by a court of law. 22 You may not consume alcoholic beverages or 23 controlled substances for the duration of probation. You 24 need to get an alcohol and drug evaluation and comply with 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 65 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 66 of 73 66 the recommended treatment. We’re going to go over the 1 evaluation and a mandatory appearance will be required and 2 this needs a calendar, I guess, availability but April 12 3 I was thinking. The 5th is bad because it’s a Public 4 Defender day and always so crowded but April 12 would be 5 the date that I would want to review that alcohol 6 evaluation and go over the treatment that is expected. 7 Does that work for you, Ms. Mackey? 8 MS. MACKEY: Yes, ma'am. 9 THE COURT: Okay and that will be at 2:30 p.m. 10 The Defendant will also obtain an evaluation for 11 domestic violence counseling at a state certified agency 12 and comply with the recommended treatment. 13 The fine is the maximum fine which is $750 for a 14 Class 3 misdemeanor and any court costs will be -- and the 15 court costs will be added by the Clerk. 16 The -- uhm -- as far as the jail sentence, what 17 I’m going to do instead of a jail sentence, because you 18 know that if you violate probation you always have those 19 six months hanging over your because any violation of 20 probation carries with it a possible resentence of up to 21 that. 22 I’m going to impose 120 hours of useful public 23 service and you need to do that 10 hours each month. So 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 66 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 67 of 73 67 that will be a year’s worth of useful public service at 1 the rate of 10 hours each month. 2 MS. CALOIA: Can he do that quicker than 10 3 hours? 4 THE COURT: No. 5 MS. CALOIA: Okay. 6 THE COURT: No, it has to be 10 a month so that 7 it is the drip method, the reminding method of your -- 8 that you are being punished and also being reintegrated 9 into regular society. That’s one of the ideas of useful 10 public service. 11 The appearance -- in the automatic probation 12 termination date in two years -- do you have that? 13 THE CLERK: I can get that. It’s going to be 14 April -- excuse me -- February 20th, 2018. 15 THE COURT: February 20th and that’s a weekday. 16 THE CLERK: That is a Tuesday. 17 THE COURT: Okay. February 20th, 2018 unless 18 allegations of violations are filed and then you would be 19 entitled to a hearing or a trial if it’s another -- if 20 it’s a new offense it would have the ability to have a 21 trial in and of itself on that new offense. Any violation 22 of probation, if you’re found guilty of it, carries with 23 it a possible six months in the county jail. 24 Any questions, Ms. Caloia? 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 67 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 68 of 73 68 MS. CALOIA: Advice of appeal rights. 1 THE COURT: Thirty-five days from this issuance 2 of this sentence -- is that what it is now -- 35 days 3 MS. CALOIA: -- 45 days -- 4 THE COURT: -- I get these seven-day things -- 5 MS. CALOIA: -- 45, 35 -- 6 THE CLERK: -- 35 -- 7 THE COURT: -- I think it’s 35 for this court 8 and 45 for the other court. That sort of took by surprise 9 because when you have a plea -- 10 MS. CALOIA: -- he can appeal the sentence, I 11 believe -- 12 THE COURT: -- and the sentence -- okay. All 13 right. So 35 days, would you agree? 14 MS. MACKEY: Sure. 15 THE COURT: Okay is that old person thing. I 16 have the seven-day increments only -- it used to be 30 17 days and everything’s changed to seven-day increments. 18 As far as the alcohol and drug evaluation, we’re 19 going to go over that on April the 12th at 2:30 and as 20 concerns monitored abstinence, you need to contact the 21 Probation Officer by tomorrow, and he or she will be 22 Danielle Desinway (phonetic) or Shawn Brown, will advise 23 you as to what is expected of you with respect to 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 68 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 69 of 73 69 monitored abstinence and also domestic violence 1 counseling. 2 Any other questions? 3 MS. CALOIA: No. 4 THE COURT: Any questions? 5 MS. MACKEY: Two, when you say we’ll go over the 6 evaluation, you expect him to have the evaluation 7 completed before then. 8 THE COURT: Yes. 9 MS. MACKEY: Correct. 10 THE COURT: Yes and bring it to court. 11 MS. MACKEY: Okay and then secondly, you said no 12 controlled substances so long as he has a prescription, 13 not marijuana, but other controlled substances that’s on 14 file with Mind Springs, that’s acceptable. 15 THE COURT: Do you already have some? 16 MS. MACKEY: Yes. Yeah. 17 THE COURT: And they’re obviously prescription. 18 MS. MACKEY: Yes. 19 THE COURT: And they are in doses as prescribed. 20 MS. MACKEY: Correct. 21 THE COURT: Then yes. 22 MS. MACKEY: Okay. 23 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 69 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 70 of 73 70 THE COURT: Okay. Anything else? Do you want 1 to -- you know Roger Ryan is the new coordinator for 2 useful public service, no longer Bev Campbell. 3 MS. MACKEY: Oh, I didn’t know that. 4 THE COURT: And he’s at the jail and can be 5 probably -- he’s probably there right now. You could 6 probably sign up right now. It’s $80 for registration and 7 he’ll have the order sentence and know that it can only be 8 completed at 10-hour a month increments. 9 MS. MACKEY: Would it be okay if we did both 10 probation and UPS signup tomorrow? 11 THE COURT: Yes. Okay. Anything else? 12 MS. CALOIA: No. 13 THE COURT: No. Okay, I do -- I wondered Mr. 14 Hecht if you wanted to apologize. 15 THE DEFENDANT: I apologize and I feel terribly 16 about the who situation and I’ll -- 17 THE COURT: -- have you done reflection -- have 18 you done some reflection about all of this? Yes? 19 THE DEFENDANT: Yes. 20 THE COURT: Yes. Okay and do you appreciate 21 having it be in the paper so much? Is that something 22 that’s caused you pain or -- 23 THE DEFENDANT: -- it’s awful. 24 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 70 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 71 of 73 71 THE COURT: Okay. All right. So I don’t know 1 what your parents told you but you should only be in the 2 paper for two things, when you’re born and when you die 3 and if you’re in there -- and of course, I’m in the paper 4 all the time but I don’t think it means me -- the public 5 figure but I can’t imagine what your family feels. Right? 6 I mean the embarrassment that you feel, they feel ten-7 fold. Would you agree? 8 THE DEFENDANT: I agree. 9 THE COURT: Okay. All right. We’ll see you 10 April 12th. Thank you. 11 (Whereupon, this matter was concluded.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 71 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 72 of 73 72 TRANSCRIPTIONIST’S CERTIFICATE 1 I, Susan M. Antonelli, do hereby attest that the 2 above and foregoing is a true and accurate transcription 3 of the digitally recorded proceedings to the best of my 4 knowledge, skill and ability of the plea/sentencing 5 hearing in 2015M197 that took place in Pitkin County Court 6 on February 24, 2016, Aspen, Colorado. 7 Dated this 28th of February, 2016. 8 9 10 11 /s/ via e-mail____ 12 Susan M. Antonelli 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 1:16-cv-00686-MSK-KLM Document 1-9 Filed 03/23/16 USDC Colorado Page 72 of 72Case 1:16-cv- 0686-MSK-KLM Document 4 -1 Filed 10/24/16 USD Colorado Page 73 of 73 Exhibit 2 Case 1:16-cv-00686-MSK-KLM Document 49-2 Filed 10/24/16 USDC Colorado Page 1 of 9 Case 1:16-cv-00686-MSK-KLM Document 1-13 Filed 03/23/16 USDC Colorado Page 1 of 849-2 10 4 2 9 Case 1:16-cv-00686-MSK-KLM Document 1-13 Filed 03/23/16 USDC Colorado Page 2 of 849-2 10 4 3 9 Case 1:16-cv-00686-MSK-KLM Document 1-13 Filed 03/23/16 USDC Colorado Page 3 of 849-2 10 4 4 9 Case 1:16-cv-00686-MSK-KLM Document 1-13 Filed 03/23/16 USDC Colorado Page 4 of 849-2 10 4 5 9 Case 1:16-cv-00686-MSK-KLM Document 1-13 Filed 03/23/16 USDC Colorado Page 5 of 849-2 10 4 6 9 Case 1:16-cv-00686-MSK-KLM Document 1-13 Filed 03/23/16 USDC Colorado Page 6 of 849-2 10 4 7 9 Case 1:16-cv-00686-MSK-KLM Document 1-13 Filed 03/23/16 USDC Colorado Page 7 of 849-2 10 4 8 9 Case 1:16-cv-00686-MSK-KLM Document 1-13 Filed 03/23/16 USDC Colorado Page 8 of 849-2 10 4 9 9 Exhibit 3 Case 1:16-cv-00686-MSK-KLM Document 49-3 Filed 10/24/16 USDC Colorado Page 1 of 8 Case 1:16-cv-00686-MSK-KLM Document 49-3 Filed 10/24/16 USDC Colorado Page 2 of 8 Case 1:16-cv-00686-MSK-KLM Document 49-3 Filed 10/24/16 USDC Colorado Page 3 of 8 Case 1:16-cv-00686-MSK-KLM Document 49-3 Filed 10/24/16 USDC Colorado Page 4 of 8 Case 1:16-cv-00686-MSK-KLM Document 49-3 Filed 10/24/16 USDC Colorado Page 5 of 8 Case 1:16-cv-00686-MSK-KLM Document 49-3 Filed 10/24/16 USDC Colorado Page 6 of 8 Case 1:16-cv-00686-MSK-KLM Document 49-3 Filed 10/24/16 USDC Colorado Page 7 of 8 Case 1:16-cv-00686-MSK-KLM Document 49-3 Filed 10/24/16 USDC Colorado Page 8 of 8 Exhibit 4 Case 1:16-cv-00686-MSK-KLM Document 49-4 Filed 10/24/16 USDC Colorado Page 1 of 4 WARFEL000551 Case 1:16-cv-00686-MSK-KLM Document 49-4 Filed 10/24/16 USDC Colorado Page 2 of 4 WARFEL000552 Case 1:16-cv-00686-MSK-KLM Document 49-4 Filed 10/24/16 USDC Colorado Page 3 of 4 WARFEL000553 Case 1:16-cv-00686-MSK-KLM Document 49-4 Filed 10/24/16 USDC Colorado Page 4 of 4 Exhibit 5 Case 1:16-cv-00686-MSK-KLM Document 49-5 Filed 10/24/16 USDC Colorado Page 1 of 2 WARFEL003211 Case 1:16-cv-00686-MSK-KLM Document 49-5 Filed 10/24/16 USDC Colorado Page 2 of 2 Exhibit 6 Case 1:16-cv-00686-MSK-KLM Document 49-6 Filed 10/24/16 USDC Colorado Page 1 of 2 WARFEL000459 Case 1:16-cv-00686-MSK-KLM Document 49-6 Filed 10/24/16 USDC Colorado Page 2 of 2 Exhibit 7 Case 1:16-cv-00686-MSK-KLM Document 49-7 Filed 10/24/16 USDC Colorado Page 1 of 4 1 2010624323_1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 16-CV-00686-MSK-KLM BROOKE LAUREN WARFEL, Plaintiff, v. NIKOS HECHT, Defendant. DEFENDANT’S RESPONSES TO PLAINTIFF’S FIRST COMBINED SET OF REQUESTS FOR ADMISSION, INTERROGATORIES, AND REQUESTS FOR PRODUCTION OF DOCUMENTS SERVED ON NIKOS HECHT BY BROOKE LAUREN WARFEL Defendant Nikos Hecht (“Hecht”) hereby responds to Plaintiff Brooke Lauren Warfel’s (“Warfel”) First Set of Combined Requests for Admission, Interrogatories and Request for Production of Documents as follows: All answers and other responses set forth below are subject to and without waiver of the attorney client privilege and work product doctrine. All documents withheld pursuant to privilege will be logged. All answers and other responses are also subject to and without waive of any specific objections set forth below. Further, Mr. Hecht’s Responses do not constitute a waiver of: 1) his rights to object to any future, additional, or supplemental requests covering the same or similar subject matter; or 2) his rights to object to the admissibility (on any grounds) of any information or document(s) produced in response to these Interrogatories and Requests. Mr. Hecht reserves the right to amend and supplement these or any other written discovery Case 1:16-cv-00686-MSK-KLM Document 49-7 Filed 10/24/16 USDC Colorado Page 2 of 4 2 2010624323_1 responses prior to trial and after further investigation, discovery, and consultation with potential witnesses. REQUESTS FOR ADMISSION REQUEST FOR ADMISSION NO. 1. Admit that on July 26th, 2015, you caused physical injury to Warfel. RESPONSE: Deny. Defendant denies that he physically injured Ms. Warfel on July 26, 2015. REQUEST FOR ADMISSION NO. 2. Admit on July 26th, 2015, you committed an act of domestic violence towards Warfel. RESPONSE: Defendant admits that he plead guilty to an act of domestic violence as defined under C.R.S. § 18-6-800.3(1). This request is denied in all other respects. REQUEST FOR ADMISSION NO. 3. Admit that you were in a romantic relationship with Warfel in 2013. RESPONSE: Deny. Defendant had at least one sexual encounter with Ms. Warfel in 2013, but a romantic relationship did not begin until 2014. REQUEST FOR ADMISSION NO. 4. Admit that you were in a romantic relationship with Warfel in 2014. RESPONSE: Admit. REQUEST FOR ADMISSION NO. 5. Admit that you were in a romantic relationship with Warfel in 2015. RESPONSE: Admit. Case 1:16-cv-00686-MSK-KLM Document 49-7 Filed 10/24/16 USDC Colorado Page 3 of 4 1 2010624323_1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 16-CV-00686-MSK-KLM BROOKE LAUREN WARFEL, Plaintiff, v. NIKOS HECHT, Defendant. DEFENDANT’S RESPONSES TO PLAINTIFF’S FIRST COMBINED SET OF REQUESTS FOR ADMISSION, INTERROGATORIES, AND REQUESTS FOR PRODUCTION OF DOCUMENTS SERVED ON NIKOS HECHT BY BROOKE LAUREN WARFEL Defendant Nikos Hecht (“Hecht”) hereby responds to Plaintiff Brooke Lauren Warfel’s (“Warfel”) First Set of Combined Requests for Admission, Interrogatories and Request for Production of Documents as follows: All answers and other responses set forth below are subject to and without waiver of the attorney client privilege and work product doctrine. All documents withheld pursuant to privilege will be logged. All answers and other responses are also subject to and without waive of any specific objections set forth below. Further, Mr. Hecht’s Responses do not constitute a waiver of: 1) his rights to object to any future, additional, or supplemental requests covering the same or similar subject matter; or 2) his rights to object to the admissibility (on any grounds) of any information or document(s) produced in response to these Interrogatories and Requests. Mr. Hecht reserves the right to amend and supplement these or any other written discovery Case 1:16-cv-00686-MSK-KLM Document 49-7 Filed 10/24/16 USDC Colorado Page 4 of 4