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Ajay Dev's Case and Facts Submitted to the Court of Appeal

Below is the table of contents for Ajay Dev's Appellant's Opening Brief submitted to the Court of Appeal on August 3, 2012. The table of contents outlines the case quite effectively. As you read it, feel free to go to any of the links for more details and explanations.

The first time you click on a link it may take a minute to open the document as it is quite large. The document is a PDF. The links below will take you to the page or general location in the PDF document. However, you might need to scroll up or down to find the heading you are looking for depending on the browser you are using. We have put page numbers to assist you. This web page and links respond best in Google Chrome.

To view the timeline click here.

INTRODUCTION (pg 1)
STATEMENT OF FACTS (pg 6)
I. Ajay and Peggy Dev Adopt Ajay’s Distant Niece, Sapna Deo, From Nepal (pg 6)
  A. Sapna Arrives in the United States on January 23, 1999 (pg 9)
  B. In November 1999, Sapna Consents to the Adoption by Ajay and Peggy (pg 10)
  C. Ajay and Peggy Provide For Sapna In Their Will And Obtain Her Permanent Residency Status In America (pg 11)
II. At Age 18, After Receiving Her Green Card, Sapna Embraces Her Social and Sexual Independence in America As Ajay and Peggy Try To Maintain Her Traditional Nepali Values (pg 13)
  A. Sapna Gets Pregnant for the First time at Age 18 (view timeline(pg 16)
  B. Sapna Gets Pregnant for the Second Time in April 2003, at Age 19 (pg 17)
  C. Sapna Travels to Nepal and Asks to Return With Ajay (pg 17)
  D. In Fall 2003, Sapna Has Sex With Araz, Has a Pregnancy Scare (pg 18)
III. Sapna Moves Out (pg 20)
  A. Sapna Accuses Ajay and Peggy of Physical Abuse To Justify Her Decision to Move Out (pg 22)
  B. Sapna Attempts to Repair Her Relationship with Her Host Parents After She Learns She May Be Disinherited (pg 24)
  C. Sapna Voluntarily Goes To Motel 6 with Ajay On January 12, 2004, After She Has Moved Out (pg 28)
  D. Sapna Chooses to Spend the Night at Ajay and Peggy’s Home To Help Peggy with Her Post Surgery Recovery (pg 30)
  E. Sapna Becomes Enraged When Ajay Interferes With Her Relationship With Will (pg 30)
  F. Sapna Accuses Ajay of Rape On February 2, 2004: One Day After Sapna Cut Off All Ties With Ajay For Causing Her Break-Up With Will (pg 31)
IV. The Pretext Call (pg 32)
    A police supervised phone call in which they hoped to obtain a recorded admission from Ajay corroborating Sapna's claim that Ajay had raped her two to three times a week for five years from ages 15 to 20 years of age. No such admission was obtained. (pg 32)
V. After The Police Execute A Search Warrant At The Dev’s Home, Sapna Asks The Police To Stop Pursuing The Case Against Ajay (pg 39)
VI. Sapna Is Arrested In Nepal Preventing Her Return To The United States and Jeopardizing Her Ability To Become A United States Citizen (pg 40)
VII. Sapna Reinstates The Charges Against Ajay Which, Facilitated By Detective Hermann, Enables Her Return To The United States As A Legal Resident And Continue Her Pursuit Of American Citizenship (pg 41)
VIII. At Trial Sapna Testified That Ajay Raped Her Two to Three Times A Week For Five Straight Years From Ages 15 to 20 
(Click here to view timeline.) (pg 45)
  A. Alleged Rapes in the Dev Home (pg 45)
  B. Alleged Oral Copulations (pg 46)
  C. Alleged Rapes and Assaults Outside the Dev Home (pg 47)
  D. Alleged Rape in Bangkok, Thailand in 2003 (pg 49)
  E. Alleged Rapes After Sapna Moved Out (pg 50)
  F. Sapna Alleged That Ajay Impregnated Her Three Times (pg 53)
LEGAL ARGUMENT 
I. AJAY WAS DENIED DUE PROCESS AND A FAIR TRIAL BY THE TRIAL COURT’S FAILURE TO INSTRUCT, SUA SPONTE, ON CORPUS DELECTI 
(pg 54)
  A. Introduction (pg 54)
  B. The trial Court Failed To Instruct The Jury, Sua Sponte, Pursuant to CALCRIM No. 359 (pg 55)
  C. Standard of Review (pg 56)
  D. The Failure To Instruct The Jury On CALCRIM No. 359 Prejudiced Appellant Requiring Reversal As A Matter Of State and Federal Constitutional Law (pg 56)
    1. A Victim Of Serial Rape Would Not Develop Sincere Feelings of Familial Love If Her Abuser Started Raping Her Two weeks Into Their Relationship (pg 58)
    2. Unlike Other Rape Cases, Numerous Professionals Scrutinized The Relationship Between The Dev’s and Sapna To determine Whether There Were Any Signs of Rape, Trauma Or Sexual Misconduct In Order To Sanction The Adoption (pg 59)
    3. Had Sapna Moved Out Of The Dev Home To Prevent Ajay From Raping Her, Rather Than As An Act of Independence, She Would Not Have Tried So Hard To Maintain and Repair Her Relationship With Ajay (pg 60)
    4. The Implausibility of the Alleged Bangkok Rape Suggests The Rape Allegations Were False Because A Rape Victim Would Not Seek Out The Opportunity To Sleep In a Hotel Room With Her Alleged Rapist (pg 62)
    5. The Implausibility of the Alleged Motel 6 Rape Equally Suggests The Rape Allegations Were False Because A Rape Victim Would Not Voluntarily Meet Their Rapist At A Hotel Room Especially After Moving Out To Escape Sexual Abuse (pg 63)
    6. The Cover-Up Surrounding the Alleged Rape On the Night of Peggy’s Surgery Suggests The Rape Allegations Were False (pg 65)
    7. Sapna’s Overt Lies About Oral Copulation Suggest She Was Also Lying About Rape Allegations (pg 66)
    8. Sapna’s Testimony That Ajay Forced Her To Watch A Pornographic Video On His Laptop Computer Entitled “18 & Confused” At 15 Years Of Age At The Concord House Was Not Believable (pg 69)
    9. The Fact That The Pornography, Found On The Dev Computers, Was Only Viewed When Sapna Lived At The Dev Home Suggests Sapna and Perhaps A Boyfriend Viewed The Pornography Rather Than Ajay (pg 70)
    10. Sapna’s Failure To Deny A Boy Impregnated Her, Rather Than Ajay, Suggests Her Allegations Were False (pg 71)
    11. Planned Parenthood (pg 72)
    12. The timing Of Sapna’s Pregnancies Suggest She Was Trying to Cover-up Her Decision To Engage In Pre-Marital Sex, Against the Will of Her Papa and the Dev’s By Falsely Accusing Ajay of Rape (pg 73)
II. THE TRIAL COURT ERRED BY ALLOWING THE VICTIM TO TRANSLATE THE PRETEXT CALL AS AN EXPERT WHICH RESULTED IN A VIOLATION OF AJAY’S DUE PROCESS RIGHTS AS THE VICTIM ATTRIBUTED ADMISSIONS TO AJAY IN DIRECT CONFLICT WITH THE DEFENSE EXPERTS TRANSLATION (pg 77)
  A. Introduction (pg 77)
  B. Standard of Review (pg 80)
  C. The Trial Court Abused Its Discretion By Failing To Appoint A Certified Interpreter To Interpret The Portions of the Pretext Call Spoken In Nepali (pg 81)
  D. The Trial Court Abused Its Discretion By Permitting Sapna, A Highly Biased Interpreter, To Translate The Portions of the Pretext Call Spoken In Nepali (pg 82)
  E. This Error Was Highly Prejudicial Requiring Reversal (pg 84)
III. AJAY’S CONVICTION MUST BE REVERSED BECAUSE CALCRIM NO. 358 MISSTATES THE LAW BY ADVISING THE JURY TO VIEW AMBIGUOUS STATEMENTS MADE BY THE DEFENDANT ON A RECORDED CALL WITHOUT CAUTION (pg 87)
  A. Introduction (pg 87)
  B. Standard of Review (pg 87)
  C. CALCRIM No. 358 Provides That Any And All Out-Of-Court Statements Made By The Defendant Do Not Have To Be Viewed By The Jury With Caution If They Are Recorded (pg 88)
  D. Jury Instructions Must Correctly State The Law (pg 89)
  E. By Instructing The Jury Pursuant To CALCRIM No. 358, The Trial Court Erroneously Instructed The Jury To View Ajay’s Highly Ambiguous Statements Recorded On A Pretext Call Without Caution (pg 90)
    1. The Law Provides That A Defendant’s Out Of Court Statement Must Be Viewed With Caution Unless A Writing Or Recording Reproduces The Defendant’s Statements Without Ambiguity (pg 90)
    2. A Reasonable Juror Would Have Misunderstood and Misapplied The Cautionary Language of CALCRIM No. 358 In Ajay’s Case Rendering The Trial Court’s Instruction Error (pg 92)
  F. Instructing The Jury With CALCRIM No. 358, Constituted Federal Constitutional Error Because The Error Rendered The Trial Fundamentally Unfair Violating Appellant’s Fifth and Fourteenth Amendment Rights to Federal Due Process (pg 93)
  G. This Issue Is Preserved For Appellate Review (pg 94)
  H. The Erroneous Instruction Harmed Ajay Under A State And Federal Standard of Prejudice Requiring Reversal and A New Trial (pg 96)
    1. Sapna’s Testimony and Translation of Ajay’s Recorded Out-Of-Court Statements Made During The Pretext Call Conflict With Other Trial Evidence Demonstrating Sufficient Prejudice for Reversal (pg 97)
    2. Sapna’s Translation of “Sex” Was Highly Prejudicial Because It Was Likely Relied On By The Jury To Decipher The Meaning Of Ajay’s Use Of The Word “Fucked” Also Spoken In The Pretext Call. (pg 99)
IV. AJAY’S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT’S EXCLUSION OF SAPNA’S 2005 NEPALI RECORD OF CONVICTION PREJUDICED THE ENTIRE TRIAL AND VIOLATED AJAY’S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE (pg 103)
  A. Introduction (pg 103)
  B. Standard of Review (pg 105)
  C. The Nepali Court Documents (pg 105)
  D. The Trial Court Rejected Every Effort The Defense Made To Admit Sapna’s Nepal Record of Conviction (pg 111)
  E. The Trial Court Erred By Refusing To Take Judicial Notice of the Nepali Court Verdict and Appellate Decision: Exhibits 502 and 500 
(pg 120)
    1. The Trial Court Abused Its Discretion By Determining Appellant Failed To Provide A Proper “Chain of Certification” Pursuant to Evidence Code section 1530 subdivision (a) subsection (3) (pg 122)
    2. The Trial Court Abused Its Discretion By Refusing To Take Judicial Notice of Sapna’s Entire Record of Conviction (pg 128)
    3. The Trial Court Abused Its Discretion By Refusing To Extend Res Judicata Effect To Sapna’s 2005 Nepali Conviction (pg 130)
  F. The Nepali Court Documents Were Also Properly Authenticated By Other Circumstantial Evidence (pg 131)
  G. All of the Nepali Court Documents, Exhibits 500 through 514, Should Have Been Admitted For the Jury’s Consideration Pursuant to Evidence Code Section 403. (pg 139)
  H. The Trial Court’s Failure To Admit the Nepali Court Documents Prejudiced Ajay Warranting Reversal Under a State and Federal Standard of Prejudice. (pg 140)
V. THE TRIAL COURT ERRED BY ADMITTING EVIDENCE OF ADULT PORNOGRAPHY TO PROVE APPELLANT WAS ATTRACTED TO MINORS WHICH, AS COMPLETELY IRRELEVANT EVIDENCE, INFLAMED AND CONFUSED THE JURY CAUSING REVERSIBLE ERROR (pg 149)
  A. Introduction (pg 149)
  B. The Trial Court Admitted A Plethora Of Irrelevant Adult Pornography Found On The Dev Home Computers (pg 151)
  C. Standard of Review (pg 154)
  D. The Trial Court Erred By Admitting The Adult Pornography Found On The Dev Home Computers To Prove Ajay Had An Attraction To Minors Impermissibly Allowing The Jury To Infer Ajay’s Guilt Based on Irrelevant and Inflammatory Evidence (pg 154)
    1. A Narrow Nexus Must Be Established Between The Pornography And The Crime Before The Pornography Can Be Admitted As Relevant Evidence (pg 154)
    2. The Adult Pornography Found On The Dev Computers, Even If It Could Be Attributed To Appellant, Had No Bearing On The Charges And, Therefore, Should Have Been Excluded As Irrelevant Evidence (pg 162)
    3. The Probative Value Of The Adult Pornography Was Not Substantially Outweighed By Its Prejudice (pg 163)
    4. The Failure To Give A Limiting Instruction On The Relevance of the Adult Pornography Further Prejudiced Ajay and Constituted Independent Error (pg 166)
  E. The Erroneous Introduction of Adult Pornography Found on the Dev Home Computers Prejudiced Ajay Requiring Reversal. (pg 168)
VI. AJAY’S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT IMPROPERLY ADMITTED A KAZAA COMPUTER LOG OF TITLES CLAIMING TO BE CHILD PORNOGRAPHY BASED ON THE PROSECUTION’S KNOWINGLY FALSE OFFER OF PROOF THAT THE FORENSICS SHOWED APPELLANT DELIBERATELY SEARCHED FOR THE TITLES ON HIS LAPTOP (pg 170)
  A. Introduction (pg 170)
  B. Standard of Review (pg 171)
  C. The Prosecutions Knowingly Made A False Offer Of Proof To Have Exhibit 44 Admitted (pg 172)
  D. The Trial Court Should Have Excluded The Kazaa Log Exhibit 44, Because Its Probative Value Did Not Substantially Outweigh Its Prejudicial Effect (pg 176)
    1. The Kazaa Log Evidence Lacked Substantial Probative Value (pg 178)
    2. Even If The Kazaa Log Evidence Had Some Probative Value, It Should Have Been Excluded Because it’s Probative Value Did Not Substantially Outweigh Its Prejudicial Effect (pg 184)
    3. The Admission of the Kazaa Log Evidence, Exhibit 44, Was Not Harmless Requiring Reversal (pg 185)
VII. THE TRIAL COURT VIOLATED AJAY’S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY EXCLUDING AN E-MAIL WHICH SHOWED AJAY WAS AT WORK WHILE SOMEONE ELSE VIEWED CHILD PORNOGRAPHY AT HIS HOME (pg 187)
  A. Introduction (pg 187)
  B. Standard of Review (pg 191)
  C. The Trial Court Erred By Excluding Exhibit 813 As Hearsay (pg 191)
  D. Exhibit 813 Should Have Been Admitted Into Evidence Because The Record Sufficiently Shows That The Computer Stamped Exhibit 813 Was Operating Properly (pg 192)
  E. The Exclusion of Exhibit 813 Prejudiced Appellant Requiring Reversal (pg 197)
VIII. AJAY’S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT SANCTIONED PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT BY ALLOWING THE PROSECUTION TO ATTRIBUTE AN ADMISSION OF RAPE TO AJAY THAT DID NOT EXIST (pg 200)
  A. The Prosecution Committed Misconduct By Telling The Jury During Closing Argument That Appellant Admitted Raping Sapna In Bangkok In A Note Passed To His Lawyer During The Preliminary Hearing: A Fact Neither In Evidence Nor Supported By Any Facts Outside The Record (pg 200)
  B. The Prosecution’s Misconduct Warrants Reversal Under a State Federal Standard of Prejudice (pg 211)
IX. AJAY’S CONSTITUTIONAL RIGHT TO A MEANINGFUL APPEAL WAS DENIED WHERE THE TRIAL COURT REFUSED TO HOLD AN EVIDENTIARY HEARING TO RESOLVE MATERIAL UNSETTLED PORTIONS OF THE RECORD (pg 214)
  A. Introduction (pg 214)
  B. Standard of Review (pg 215)
  C. The Trial Court Erred By Denying Ajay An Evidentiary Hearing During Settlement Proceedings Implicating Ajay’s Constitutional Right To A Meaningful Appeal And A Sufficient Record on Appeal (pg 215)
  D. Viewed in the Light Most Favorable to the Defense, the Record Omitted an Unanswered Jury Note Submitted on June 24, 2009 Requesting Guidance on Whether it Was Proper to View Testimony from One of Sapna’s Friends as the Truth (pg 220)
  E. Viewed in the Light Most Favorable to the defense, The Record Shows That The Jury Never Received Exhibit 36B, The Video-Taped Interview Between Sapna and Detective Hermann, In Response To Its First Jury Note (pg 222)
    1. Exhibit 36B Was Missing From The Evidence provided To The Jury (pg 222)
    2. The Jury Was Never Given Exhibit 36B pursuant To Its Request In The First Jury Note Submitted To The Trial Court (pg 225)
  F. The Record Was “Unsettleable” With Respect To Whether The Jury Was Given Newly Admitted Evidence After Jury Deliberations Started (pg 229)
  G. These Errors Prejudiced Ajay Warranting Reversal (pg 230)
X. DUE PROCESS DEMANDS THAT AJAY’S CONVICTIONS BE REVERSED AND HE BE GRANTED A NEW TRIAL BASED ON THE CUMULATIVE EFFECT OF ALL THE ERRORS IN HIS CASE (pg 231)
CONCLUSION (pg 233)