Erika Towne

Day 12 Becker Perjury Trial: DA Investigator Testifies to Destroyed Evidence

After a week-long break, the jury returned to the South County Courthouse in Morgan Hill on Dec. 2 to continue the perjury trial of Santa Clara City Council Member Anthony Becker. District Attorney’s Office investigator Ben Holt returned to the stand to resume the cross-examination that started on Nov. 22.

Holt testified the DA’s Office could not obtain a search warrant for Becker’s devices until a felony was committed. He said when former 49ers public relations executive Rahul Chandhok identified Becker as the leak of the “Unsportsmanlike Conduct” report, that substantiated felony perjury before the civil grand jury and there was “probable cause.” Leaking the report is only a misdemeanor.

However, after battling through several objections, Becker’s lawyer, Deputy Public Defender Chris Montoya, drew out that Becker did not have a lawyer during his civil grand jury testimony.

Chandhok Continues to Play a Key Role in the Case

While Becker did not have a lawyer present for his testimony, after an objection from Malinsky, Holt recalled Chandhok had a lawyer.

Montoya asked Holt if he recalled Chandhok’s lawyer taking Chandhok’s phone during the Nov. 22 testimony and when Chandhok received the phone back, he could not open the Signal app.

Malinsky objected to the line of questioning. The judge sustained the objection.

Holt testified he never asked Chandhok’s lawyer if he deleted Signal from Chandhok’s phone.

Investigators seized Chandhok’s devices on Jan. 12, 2023. Holt testified he did not know what Chandhok did with them prior to that date.

In earlier testimony, Holt said he obtained a search warrant for Chandhok’s devices because he wasn’t sure what “cost or length” Chandhok would go to to protect Becker or the 49ers.

When asked about Chandhok’s immunity agreement, Holt said his understanding was the DA’s office “forced immunity” on Chandhok and “compelled” him to testify to the criminal grand jury “against his wishes.”

Holt also stated, “Mr. Chandhok did not commit a crime nor did we have evidence that he committed a crime.”

Destroyed Evidence

As discussed in previous motions, the defense was allowed to ask about a destroyed recording that was made while serving the search warrant at Chandhok’s home.

Holt told the court he always records audio when he serves a search warrant. At one point during the search, he thought he recorded a privileged conversation between Chandhok and his lawyer. Holt moved out of earshot.

Later that day, he called Malinsky to tell him. They agreed to look into what to do next but never did.

The audio recording was never saved. It was destroyed when Holt traded his phone in for a new one in January 2024.

In his report, Holt did not mention the recording or the conversation with Malinsky.

What’s more, neither mentioned nor remembered it three months later during criminal grand jury testimony.

When asked why, Holt said it was “nothing of note” and in “hindsight” he wished that he had.

Holt took full responsibility for failing to follow through. He did not believe the defense was entitled to the recording with its privileged information but said it would be entitled to a redacted version.

Holt “self-reported” the destroyed audio file on Oct. 31, 2024.

During redirect, Malinsky tried to equate failing to document the recording of a potentially privileged conversation and the discussion afterward to failing to document the type of dog Chandhok owned or that Chandhok offered the officers water.

When asked why he “self-reported,” Holt said it was an “integrity issue.”

Limited Scope of the Investigation

With millions of pieces of evidence, Holt had to be hyper-focused in his investigation.

Holt told the court his primary focus was on Oct. 6, 2022, after the report was sent to the City of Santa Clara, until Oct. 7, 2022, at 3 a.m., when the first article about the report was published.

While Holt could confirm Becker communicated with Silicon Valley Voice reporter Carolyn Schuk on Oct. 7, 2022, he could not recall if the two communicated on Oct. 8, 2022.

While search warrants for Becker’s devices dated back to November 2020, search warrants for Chandhok’s devices, iCloud data, text and phone call logs only covered Oct. 5, 2022 and forward. There was no warrant for Chandhok’s data storage accounts, such as DropBox, Ignite, Nord Locker, or OneDrive.

A search warrant for Santa Clara City Council Member Kevin Park’s devices only covered calls and texts after Oct. 5, 2022. The Signal data warrant went back several years.

When Montoya asked about the search warrant for Santa Clara Mayor Lisa Gillmor, Malinsky quickly objected. He said it was beyond the scope. Judge Alcala agreed.

When Montoya asked if there were warrants for anyone else other than Becker, Park, Chandhok and Gillmor, Malinsky objected again.

Montoya argued it went to the “veracity and integrity and thoroughness” of the investigation. While Judge Alcala did not agree with the statement, he overruled the objection.

Holt testified there were no other search warrants because there was no “probable cause” for anyone else.

Direct Evidence vs. Circumstantial Evidence

The prosecution has said the case relies on circumstantial evidence, which, according to Britannica, is “evidence not drawn from direct observation of a fact in issue.”

Holt testified there is no direct evidence in Becker’s city or personal emails that he sent the report to Chandhok, Schuk or any other member of the media.

There is no direct evidence on Becker’s personal or city phones that he called, texted or forwarded the report to Chandhok, Schuk or other members of the media. There is no evidence on Becker’s iCloud.

There is no evidence Becker printed the report from the city server.

When Montoya tried to ask if another council member had printed the report, Malinsky objected on the grounds of relevance. Judge Alcala agreed.

Location data shows no evidence Becker was near Chandhok’s address.

Holt said that the absence of any common location is insignificant and not of value, but the presence of the data would be significant.

There was no evidence that Becker told Chandhok or the media to use Signal or that Becker told anyone to use expiring messages.

There is no direct evidence Becker sent the report to Chandhok. However, there is direct evidence multiple people sent the report to Chandhok.

Holt testified City Council Member Kevin Park admitted to a call with Chandhok on Oct. 6, 2022, the same day that Chandhok received the report. Holt said Park and Chandhok communicated regularly around the time the report was leaked.

When Holt testified Park communicated on Signal with Chandhok, Malinsky objected, citing hearsay. The judge sustained the objection.

Independent Expenditure Committees

Montoya did his best to debunk the theory Becker benefited financially from the 49ers’ support of his campaign. He pointed out Becker lived in an apartment and Becker told the grand jury he could not afford campaign consultants.

Holt did not find evidence that Becker personally received money from the 49ers, though he did not issue a search warrant for Becker’s bank records.

There were no text or email communications that showed Becker received money or gifts to his campaign.

There was no evidence of communications between Becker and the 49ers’ independent expenditure committees.

The Mysterious Call from a 510 Number Solved

When the prosecution laid out its case, it highlighted a call from Becker from a strange 510 number in December 2022. What the prosecution failed to mention, which Holt testified to in cross-examination, is that the number belonged to Becker’s husband.

Montoya asked Holt why he didn’t ask Becker about the call on Dec. 28, 2022. Holt said they weren’t aware of the call at that time.

Montoya asked Holt if he had ever asked about the call before Becker was indicted in April 2023. Holt said he did not.

He said he did not know what number it was before Becker was indicted. Furthermore, once Becker had a lawyer, he could no longer ask.

GrandJuryReport-dot-com

When Montoya tried to broach the subject of the website GrandJuryReport-dot-com, he didn’t get far.

Montoya asked Holt about Becker’s email to the Mercury News’ Ed Clendaniel. On Oct. 9, 2022, Becker sent Clendaniel an email with the GrandJuryReport-dot-com link. The email said the report was public.

Montoya asked Holt about that email, but Holt did not recall that specific communication.

When Montoya asked if Holt had investigated the website since it was live before the report was made public on Oct. 10, 2022, Malinsky objected.

Judge Alcala sustained the objection.

Web designer Jason Salinas testified he purchased the domain name on Oct. 7, 2022 at 8:40 a.m. and got the report from the San Jose Spotlight.

Holt testified Spotlight did not publish an article with the full report until 9:55 or 10 a.m. on Oct. 7, 2022.

When Montoya tried to ask about Salinas’ contact with Santa Clara Police Officers Association president Jeremy Schmidt, who hired Salinas, Malinsky objected.

Montoya argued Schmidt testified before the civil grand jury. Malinsky said it was beyond the scope.

Judge Alcala agreed.

Montoya moved on to Becker’s testimony. Becker told the civil grand jury he saw ads on Stand Up for Santa Clara’s Facebook page with a link to GrandJuryReport-dot-com before the report was released on Oct. 10, 2022.

Montoya asked if Holt had contacted Stand Up for Santa Clara. Malinsky objected on relevance.

Judge Alcala agreed.

Other Details Revealed During the Trial

A text exchange between Becker and his brother was previously entered into evidence. In it, Becker tells his brother that he’s in the midst of the greatest battle of his life and that “Niners are going to go all out to destroy her [Gillmor].”

In cross-examination, Holt testified the texts happened on the evening of Oct. 7, 2022 more than 12 hours after Chandhok sent an email to the City of Santa Clara, including the city council, outlining all of the errors in the report.

Holt agreed that the email did not mention Becker, nor did Becker’s texts to his brother use the terms “we” or “us.”

Montoya tried to point out Becker cooperated with the investigation and voluntarily showed up for an interview at the DA’s office on Dec. 28, 2022. He even stayed as the questioning intensified.
12 to 15 officers served the search warrants at Becker’s council office, home, vehicle and Becker himself on Dec. 28, 2022.
No evidence was seized at Becker’s city council office.
On the list of evidence found at Becker’s home in December 2022 was an “Unsportsmanlike Conduct Document.” The evidence report did not elaborate. Holt testified it was seized well after the public release of the report.
Montoya tried to ask Holt about Becker’s phone records, specifically a call to former Santa Clara City Attorney Steve Ngo on Oct. 6, 2022. Malinsky objected. It was sustained.
Holt testified he has used Signal for several years. When asked if it was for illegal purposes, Holt laughed and said absolutely not.
When asked if Gillmor used Signal, Malinsky objected. It was sustained.
When asked if Becker was told by Chandhok to use Signal, Malinsky objected. It was sustained.
During Chandhok’s testimony on Nov. 7, 2024, Holt learned Chandhok had security cameras in his home. He asked Chandhok’s lawyer to see if there was still a recording from Jan. 12, 2023. There was not.
Chandhok’s Google search history shows things like “Do you have to testify if given a grant of immunity in California,” and “Signal app not unlocking.”
19 civil grand jurors contributed to the report. None were investigated.
At least six county court employees and three city employees had access to the report before its release. None were investigated.
An audio recording was played at a previous court hearing with a transcript. Judge Alcala said the transcript must be submitted into evidence and it does not have to be authenticated.
At several points, Malinsky objected and said the defense was asking for a legal opinion. Judge Alcala sustained the objections. When the defense objected on the same grounds, it was overruled. Montoya asked for a sidebar and was denied.
Holt testified he is always re-evaluating his investigation. The defense called it late discovery and pointed out Holt submitted evidence on Oct. 31, Nov. 5, Nov. 14 and Nov. 18 of 2024.
Holt also interviewed Becker’s brother on Oct. 17, 2024 to ask him about whether Becker ever spoke to him about the case or if there were text exchanges.

The redirect of Holt will continue tomorrow morning. It appears the prosecution will rest after Holt’s testimony.

The defense said it may call Emily Matthews as a rebuttal and impeachment witness. Malinsky argued she was not on the defense’s witness list nor the prosecutions. He also said Matthews was interviewed by investigators and he does not think her testimony is useful.

View Comments (2)

Buchser Alum says:

December 3, 2024 at 5:13 PM

Erika,
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Thank you for yet another detailed report on the day's proceedings in court.
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Everything that is being reported is backing up what anyone paying attention to this with an impartial and open mind would have suspected.
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Becker had a cozy relationship with the Forty Niners and their executive Rahul Chandhok and also with this publication's editors Angie Tolliver and Carolyn Schuk. Chandhok and the Forty Niners had a cozy relationship with this publication's same editors and also its publisher Miles Barber as well as with Ramona Giwargis of the San Jose Spotlight. Both the Forty Niners and Anthony Becker had dealings behind the scenes and both had behind the scenes dealings with this publication and the San Jose Spotlight. On the matter of coordinating a public response to the grand jury report for the purpose of politically making the Forty Niners and their management of the stadium look better to the public and to create a negative political perception of Lisa Gillmor.
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On the matter of the SCPOA and their website about the grand jury report it is clear that they knew that a grand jury report was going to be released and that it would be relevant to their political interests which are aligned with Lisa Gillmor's and adverse to those of Anthony Becker and the Forty Niners. The DA did not investigate whether or not the SCPOA received a copy of the grand jury report before it was made public by the San Jose Spotlight who I believe received it from Rahul Chandhok though it seems that we do not know if it was sent to them by Anthony Becker. When the SCPOA's website publicized the report or referred to it in any kind of detail requiring possession of the draft report the draft report had already been made public to every Tom Dick and Harry who had access to San Jose Spotlight's website.
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Beyond the matter of the grand jury report and Anthony Becker's improper use of his office to help a corporate special interest with financial interests that often compete with the city's and his perjuring himself in sworn testimony this trial has shed further light on how he personally benefited from his relationship with the Forty Niners.
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We all already know that the Forty Niners have spent millions of dollars to support his political ambitions. First his election to our city's council and then his failed attempt to win the mayor's seat. Part of his illegal use of his office to work with the Forty Niners was surely because he felt that the Forty Niners would help him politically by "going to go all out to destroy" Lisa Gillmor.
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This is quite an alarming statement being made by a city councilperson. Talking about a corporate special interest "going all out to destroy" the mayor of our city. The same mayor he was running in an election to unseat so that he could become mayor. The same corporate special interest that spent millions of dollars to help him become mayor.
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Even if one believes that the Forty Niners have done a good job of managing the stadium and sharing profits with the city and that Lisa Gillmor has been too critical of their management and has pursued unjustified litigation against them this degree of animosity and secret collusion by Becker with the Forty Niners is beyond the pale. And Becker knew this full and well which is why he tried to hide it. It is why he did this all in secret. It is why he used a secret messaging application. It is why he use his husband's phone to call Rahul Chandhok and asked Angie Tolliver to call Chandhok first to encourage Chandhok to take his call. It is why he lied about this all when asked about it by the grand jury.
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We as a city need to figure out a way to have a cooperative relationship with the Forty Niners. Despite knowing how they plotted in secret with a lying city councilperson they spent millions to support we still need to do this. We also need the one publication that covers this city in great detail to be a reliable source of impartial reporting. Despite knowing how its chief figures have worked behind the scenes on coordinating political messaging with the Forty Niners we still need this. I hope that this publication does better in terms of reporting the facts and clearly labeling editorializing as that and I hope that we can find a way to be good partners with the Forty Niners on the stadium.
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And I am glad that we will no longer have to have our city council sullied by the presence of this corrupt idiot. I am so thankful that he was not elected to be mayor of our city despite the Forty Niners spending millions of dollars to do just that. Despite the corruption and sullying of our city I hope that the consequences of this trial do not prevent him from moving on in life in a productive way. There must be consequences so that our elected officials know that they will be caught and punished if they conspire with a corporate special interest for their own political or other benefit. But he has already ruined his reputation and future as a politician and I do not think that the people need to pile on much more to send the right message.

CSC says:

December 3, 2024 at 5:56 PM

Well said, Buchser.
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Although it's not over 'til it's over, from all publicly available reporting it appears Becker's attorneys are now simply doing whatever they can do put forth a best defense for their client. In either case, Becker's action is at best professional immaturity. Hopefully he can move on and move forward outside the City of Santa Clara.
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The conclusion of Becker's trial should not stop the DA's office from continuing to investigate anyone else who leaked the report. However, this is the City and County of Santa Clara where Jeff Rosen doesn't have an external body forcing him to investigate his allies.