Case o' The Week: Three times, no Brady - Harmon and Knowing Perjured Cooperator Testimony before Grand Jury

 What do you call a conviction of charges in an indictment obtained from the knowing presentation of perjurious snitch testimony before the grand jury? (Three times over!)

  You call it, “affirmed.”

United States v. Harmon, 2016 WL 4394586 (9th Cir. Aug. 18, 2016), decision available here.

"The Denial of Saint Peter"

  Players: Decision by Judge Owens, joined by Judges Wallace and D.W. Nelson. Hard-fought appeal by FPD alum, NorCal CJA stalwart, and Brady defender Ed Swanson, argued by Swanson & McNamara partner August Gugelmann.

Facts: Harmon, a defense lawyer, accepted crime proceeds from a client and then wrote him back checks from her account. Id. at *1. She was charged with money laundering: the core issue was whether Harmon knew the money came from crimes. Id. 

  To get the indictment, a ND Cal AUSA presented actively-cooperating and paid witness “Yan Ebyam” to the grand jury three times. Id. at *1. “The grand jurors were curious about Ebyam’s relationship with the prosecution.” Id. Ebyam was thus asked if he had received any promises or benefits in exchange for his testimony. Id. He lied and answered, “no.” Id. 

  At the second grand jury session, the AUSA asked if Ebyam was testifying under his own accord. He lied again, assuring that he was under no obligation to cooperate. Id. 

  At the third grand jury session Ebyam was asked if he was receiving any benefits for his testimony. He lied yet a third time: “I’m not under indictment. I’m not getting any paychecks . . . there’s no secret benefit down the line.” Id. [Ed.: “And immediately, while he yet spake, the cock crew.” Luke 22:59-62].

  Harmon was indicted, tried, and convicted: motions for dismissal and a Brady motion for a new trial were denied. Id. at *3.

Issue(s): “Harmon appeals from her convictions for money laundering. She argues that the prosecutor's errors before the grand jury constitute structural error, requiring reversal. She also contends that the government’s failure to disclose impeachment evidence about a hostile defense witness mandates a new trial.” Id. at *1.

Held: “Because the grand jury errors are not structural, and any impeachment evidence immaterial, we agree with the district court’s well-reasoned analysis and affirm.” Id. at *1. “We hold that where the intentional misconduct by the prosecution goes to a witness’s credibility, it is not structural error.” Id. at *4.

Of Note: Harmon is a troubling decision, with a disappointing new rule for the Ninth: knowingly presenting perjured testimony to the grand jury is not structural error (and is per se harmless error as a matter of law if sanitized by a petit jury’s verdict). 

  Judge Owens concedes that both the Second and Tenth have acknowledged that dismissal of an indictment is possible for prosecutorial misconduct before the grand jury. See id. at *4 & n.7. The Ninth disclaims a circuit split, assuring us that Ebyam’s series of deliberate and overt lies were just “technical” – not “flagrant or egregious misconduct.” Id. 

   Three years ago, another Ninth jurist warned, “There is an epidemic of Brady violations abroad in this land. Only judges can put a stop to it.” United States v. Olsen, 737 F.3d 625 (9th Cir. 2013) (Kozinski, (former) C.J., dissenting from order denying the petition from rehearing en banc); see also blog entry here. Reading Harmon, fair to ask what progress has been made in putting a stop to that epidemic.

How to Use: “Under Mechanik, presenting false information to the grand jury affecting a witness’s credibility and withholding impeachment information – even if done intentionally, which we assume but do not decide – are harmless as a matter of law after a petit jury returns a guilty verdict.” Harmon, 2016 WL 4394586 at *4 (emphasis added). Putting aside that characterization of Mechanik (a Supreme Court case that involved Federal Rules error – not constitutional error), what can we now do to deal with a “holding [that] could encourage prosecutorial misconduct?” Id.

  The D.C. Circuit has it right: the time has come for a standing Brady disclosure order, entered in every criminal case. See D.C. Circuit standing order here. 

                                   

Mr. Yan Ebyam

For Further Reading: During the Stevens Brady debacle, you’d read the stories about the snitches and think that the nondisclosed impeachment was so bizarre that it had to have been cooked up by a screenwriter.  See article here. 

  Déjà vu vu, all over again. See Zusha Elison, Entrepeneur’s Ambitious Plans Go Up in Smoke, New York Times, May 21, 2011 available here, see also Unusual Pot Entrepreneur with Checkered Past Strikes Plea Deal, available here.

Image of “The Denial of Saint Peter” by Gerard Seghers from Google Art Project, Public Domain, https://commons.wikimedia.org/w/index.php?curid=41101879

Image of Mr. Ebyam from http://dvtfaqskbwkln.cloudfront.net/usa/ca/user_content/newsimages/4cd920b6-0000-4850-9463-67ed0144b75d.jpeg?app=192024

Steven Kalar, Federal Public Defender, N.D. Cal FPD. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Gives Defense Welcome Immunity Shot - Wilkes

California Congressman Randall "Duke" Cunningham (right) took his resignation hard, after being caught in a massive bribery and corruption scandal. Duke's alleged co-conspirator, Brent Wilkes, has cause for a more joyful reaction: the Ninth just sent his case back down after conviction when the defense was denied court-ordered immunity for an important witness. United States v. Wilkes, 2011 WL 4953070 (9th Cir. Oct. 19, 2011), decision available here.

Players: Big win for San Diego Ass’t Fed. Defenders Shereen Charlick and Gabriel Cohan.

Facts: Wilkes’ company converted government docs to an electronic format. Id. at *1. To win government contracts Wilkes spent tens of thousands of dollars on meals, trips, and payments to former California Congressman Randall “Duke” Cunningham. Id. The bribes and contracts escalated for eight years, until a newspaper exposed the scheme and Wilkes was charged with a variety of federal offenses. Id. At trial Wilkes sought immunity for defense witness Williams, whom he contented would contradict the testimony of prosecution-immunized witnesses. Id. at *2. The district court denied the motion, holding that it “could not compel a defense witness’s immunity absent a finding of prosecutorial misconduct.” Id. Wilkes was convicted of thirteen counts, and appealed. Id.

Issue(s): “Wilkes maintains that the district court should have compelled the prosecution to grant use immunity to defense witness Williams because had he been granted immunity, his testimony would have corroborated Wilkes’s testimony and directly contradicted the testimony of immunized government witnesses. The government contends that Wilkes was not entitled to compelled use immunity for Williams because Wilkes failed to provide a valid offer of proof of Williams’s testimony in the presence of the witness’s counsel and counsel for the government. Wilkes’s ex parte proffer to the district court was thus meaningless, the government argues, because there was no reason to believe Williams would have testified as Wilkes proffered.” Id. at *3.

Held: “Here, the district court concluded that Wilkes had proffered testimony by Williams that would have been ‘material and relevant evidence that the defense would want to present to counter some of what’s been presented by the United States through immunized witnesses.’ The district court also repeatedly expressed its concern that not granting Williams immunity would have the effect of distorting the fact-finding process. The court nonetheless refused to compel use immunity because it concluded that it was powerless to do so absent a finding of prosecutorial misconduct.” Id. at *5.

“In view of this court’s ruling in Straub that a finding of prosecutorial misconduct is not required to compel use immunity, this matter must be remanded to the district court for an evidentiary hearing so the trial court can gather ‘greater detail about [Williams’s] proposed testimony and the immunity agreements the government gave to its other witnesses’ to determine whether compelled use immunity was constitutionally required. Straub, 538 F.3d at 1151.” Id. at *6.

Of Note: Sadly, other issues in this long opinion didn’t fare as well as the defense-immunity question. Of particular concern is the Court’s tolerance for withholding proffer sessions from the defense. Id. at *6-*7. Wilkes argued a Brady / Giglio violation when the government failed to disclose proffer sessions of an important witness. Id. at *7. Judge Alarcón, in our view, incorrectly characterizes these sessions as “cumulative” – the defense already knew that the government witness had immunity, and knew of the witness’s involvement of in the bribery scheme. Id. at *7.

However, as anyone who has proffered a snitch knows, Judge Alarcón’s justification misses the point: those secret sessions are where a cooperator’s story is “polished” (or “dictated”) into an acceptable script for the government. It is the changes in a cooperator’s story, revealed in proffer sessions, that is the Giglio gold – not the obvious fact that the cooperator is also a crook.

The disclosure of Gilgio material from proffer sessions is a challenge that needs further work: Wilkes’ analysis gives the issue short shrift.

How to Use: When hunting immunity for defense witnesses, compare Wilkes to another post-Straub case, Flores-Blanco. See blog here. The key difference in the two Ninth Circuit decisions? In Wilkes, there were prosecution-immunized witnesses; in Flores-Blanco, not. That key fact can give much sharper teeth to a Straub challenge to failure to order immunity for defense witnesses.

For Further Reading: President Obama has nominated a replacement for Ninth Circuit Judge Rymer: Paul Watford (above left). See article here. A former AUSA and a Justice Ginsburg clerk, 44-year old Watford will presumably have a different confirmation experience than (now-California Supreme Court Justice) Goodwin Liu.




Image of Randall "Duke" Cunningham from http://www.momdot.com/biggest-meltdowns
Image of Judicialnominee Paul Watford from http://articles.latimes.com/2011/oct/18/nation/la-na-obama-nominates-judge-20111018


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcal.fpd.org


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Case o' The Week: Mill on the Doss - Witness tampering and "reminding" of testimonial privilges

"I, the bride, take you, the groom, to be my husband, to have and to hold from this day forward, for better or for worse, for richer, for poorer, in sickness and in health, to love and to cherish; from this day forward until death do us part, or until I am charged in a federal indictment and given an opportunity to cooperate against you to save my own skin."

In a moving tribute to the sanctity to marriage, the Ninth upholds a defendant's ability to remind his blushing bride of the marital privilege against testifying. United States v. Doss, 2011 WL 117628 (9th Cir. Jan. 14, 2011), decision available here.

Players: Hard-fought appeal by CD Cal AFPD Davina Chen. Decision by Judge Hawkins, joined by Judges Berzon and Clifton.

Facts: Doss was tried for transporting minors for prostitution and for witness tampering (a violation of 18 U.S.C. § 1512). Id. at *1. Among other allegations, Doss was charged with attempting to persuade his wife to assert the marital privilege and to not testify. Id. Unfortunately, and unbeknownst to Doss, his wife was cooperating. She did not assert the privilege, she testified against him, and he was convicted at trial. Id. at *2-*3.

Doss moved before trial to dismiss the witness tampering counts for failure to state a violation of § 1512(b)(1), (2)(A); during trial he moved for acquittal on those counts on the same grounds. Id. at *3. Both motions were denied. Id. He was sentenced to life. Id.

Issue(s): “The issue before us is whether one can be convicted for witness tampering under 18 U.S.C. § 1512 by encouraging a witness to withhold testimony when that witness possesses a legal right or privilege not to testify.” Id. at *1. “The principal debate is over the meaning of the term, ‘corruptly persuades’ [another person with the intent to cause any person to withhold testimony, as set forth in § 1512(b)(1), (2)(A)].”Id. at *3. “Doss argues that there was nothing ‘corrupt’ about persuading his wife to exercise her marital privilege not to testify, and that therefore the district court should have granted his motion for acquittal.” Id. at *6.

Held: “We . . . conclude that the district court erred by failing to grant Doss’s motion for acquittal of Count 8 [relating to the assertion of the marital privilege]. . . . The evidence at trial established only that Doss appealed to his wife to exercise her marital privilege not to testify against him. As Doss’s wife, Ford had the legal option not to testify, and thus Doss’s request, without more, was insufficient to establish ‘corrupt’ as opposed to innocent persuasion.” Id. at *7.

Of Note: The Ninth Circuit falls on the right side of a circuit split on this issue. The Second and Eleventh have held that if a defendant encourages a witness to assert a lawful privilege against testifying, and does so with an evil heart, he or she is guilty of “corruptly persuading” under § 1512. Id. at *3. The Third, by contrast, requires something inherently wrongful about the persuasion – like bribery, or encouraging perjury. Id.

The panel agrees with the Third Circuit in a particularly well-written analysis. The strength of Judge Hawkin’s opinion may matter: our colleague Davina may be a reluctant white-quill recipient before the dust settles on the case.

How to Use: Doss isn’t limited to the marital privilege. Non-coercive attempts to convince a witness to assert the Fifth Amendment also fall outside of the scope of § 1512. Id. at *7. Unfortunately for Doss, he also encouraged the other witness (for whom the assertion of the Fifth was at issue) to lie. Id. “[N]on-coercive attempts to persuade a witness to lie are clearly covered by § 1512(b).” Id. Thus, under Doss a defendant can lawfully persuade a witness to assert the marital or Fifth Amendment privilege – but (not surprisingly) it remains a crime to suborn perjury. Id.

For Further Reading: After Doss our clients commit no crime if they attempt, without coercion, to persuade government witnesses to assert a lawful testimonial privilege. Does Doss mean that defense counsel can contact witnesses and encourage them to assert a privilege – with the goal of keeping them off the stand?

Maybe.

For example, the Fifth Circuit found “no impropriety” when defense counsel contacted a witness’s attorney, described the dangers of self-implication if the witness testified, and reminded the attorney of the Fifth Amendment. See McNeal v. Hollowell, 481 F.2d 1145, 1152 (5th Cir. 1973).

On the other hand, defense attorneys have been convicted for such advice (though admittedly with a bribe or two thrown in). And there’s a model ethical rule that prohibits unlawfully obstructing opposing counsel’s access to evidence. See ABA Model Rules of Prof'l Conduct R. 3.4(a). For a very helpful article on this murky ethical area, see Mark Mermelstein and Charlotte Decker, Walk the Line, Los Angeles Lawyer, available here.



Image of a bride from http://www.completetext.com/picture_library/Bride.jpg


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at wwwndcalfpd.org

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Case o' The Week: Snitch Golden Despite Vouching, US v. Brooks

A disappointing loss on plain error review still offers some very useful language to fend off prosecutorial vouching. United States v. Brooks, __ F.3d __, 2007 WL 4198177 (9th Cir. Nov. 29, 2007), decision available here. The decision is particularly helpful in cases involving snitches, and wiretaps.

Players: Decision by CD CA D.Ct Judge Guilford.

Facts: Brooks went to trial in a wiretap case involving a Seattle drug conspiracy. 2007 WL 4198177, *1. During direct and re-direct of the government’s snitches, they explained that their plea agreements required “truthful” testimony or they would get no breaks at sentencing. Id. at *3. The snitches agreed that if the prosecutor and court thought that they were lying, they would earn no downward departure. Id. at *3-*4.

The government also elicited testimony from other witnesses about the extensive review (DEA, AUSAs, State and Federal judges) that went into the authorization of the wiretap. Id. at *5. There was no defense objection to these lines of questioning. During the defense closing, the defense conceded Brooks’ guilt on several (non-mand-min) counts. Id. at *1. The jury found guilty on all counts, including a twenty-year mandatory-minimum drug count. Id. at *1.

Issue(s): “First, Brooks argues there was vouching in the direct examination of three witnesses [the snitches]. Second, Brooks argues that the re-direct examination of one of these witnesses implied that the court and others had made conclusions about the witness’s veracity. Third, Brooks argues there was vouching in the government’s evidence about the wiretap authorization process.” Id. at *3.

Held: “We agree with Brooks that the government engaged in improper vouching. Nevertheless, we affirm because the error did not affect Brooks’s substantial rights. Fed.R.Crim.P. 52(b).” Id. at *3.

Of Note: While Brooks lost on plain-error review, the decision has much good language condemning this type of vouching. For example, a cooperating witness who explains that his deal depends on telling the truth is vouching – such statements “suggest that the witness, who might otherwise seem unreliable, has been compelled by the prosecutor’s threats and the government’s promises to reveal the bare truth.” Id. at *4 (internal quotations and citation omitted).

Similarly, it was improper vouching to elicit testimony that a snitch’s sentencing reductions rest on a court’s determination that the witness told the truth. Id. at *4. “Whether the witnesses have testified truthfully, of course, is entirely for the jury to determine: it is improper to communicate that a credibility determination has been made by the AUSA, law enforcement agents, or the court, or that the government knows whether the witness is being truthful and stands behind the veracity of the witness’s testimony.” Id.

Finally, dwelling on the many authorizations necessary to get a wiretap is not relevant at trial, and is also improper vouching. Id. at *5.

How to Use: First and foremost, Brooks teaches the importance of objecting at trial. Had objections been lodged, Brooks might have prevailed (sans objections, the Court here used the very tough “plain error” review).

This decision would also make a great foundation for a little prophylactic in limine motion whenever snitch or wiretap testimony is anticipated at trial. Such a motion would fire a warning shot across the prosecutor’s bow, and would remind defense counsel that this type of testimony is improper vouching – and to object! (Whoever first drafts this motion should shoot me a copy, and I'll post it on the ND Cal FPD website).

For Further Reading: In Brooks, the Court concludes “The vouching here was within the broad bounds of the plain error standard, but pushed hard against those bounds and threatened the integrity of the verdict. It is not a model for future trials.” Id. at *7. While it’s easy to be cynical about this warning (given the Court’s refusal to actually reverse), the Ninth is generally pretty intolerant of vouching. See, e.g., United States v. Weatherspoon, 410 F.3d 1142, 1152 (9th Cir. 2005) (reversing for improper vouching in a comparatively close case involving credibility battle); United States v. Combs, 379 F.3d 564, 575-76 (9th Cir. 2004) (reversing for vouching given circumstantial nature of government’s case); United States v. Edwards, 154 F.3d 915, 923-24 (9th Cir. 1998) (reversing for improper vouching when prosecutor personally discovered critical piece of evidence during trial); United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (reversing due to cumulative effect of vouching and other errors). In a slightly closer case (or without strategic defense concessions in closing) Brooks probably would have won reversal and remand here as well.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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