Case o' The Week: A Snitch in Time? "No," Says Nine - Obagi and Brady / Giglio Remedies

  Gov’t snitch lies? 

The Hon. Judge John Owens

  Case retries.

United States v. Obagi, 2020 WL 4033849 (9th Cir. July 17, 2020), decision available here.

 Players: Decision by Judge Owens, joined by D.J. Molloy. Dissent by Judge Bumatay. Big win for former CD Cal AFPDs Craig Wilke and Davina Chen.  

 Facts: Obagi and his co-D were tried on charges related to mortgage fraud. Id. at *1. The government relied heavily on cooperators. Id. at *2. To bolster its case, the government called witness “Saad,” who testified against the defendants. Saad assured the jury that she had received no consideration from the government. Id. The AUSA “relied heavily” on Saad’s confirming testimony in closing, as a non-compromised and corroborating government witness. Id.

   A different AUSA was watching the closing arguments. He informed the Obagi prosecutor that Saad was actually cooperating, and had received immunity in a separate mortgage investigation. Id. at *3.

   The court discussed options: a mistrial, recalling Saad to be crossed, or an instruction. Id.

   The court decided on a curative jury instruction, and both co-D’s were convicted. Id.  

 Issue(s): Because the details of Saad’s cooperation was Brady evidence, was a curative instruction given after the government’s closing argument a sufficient remedy?

 Held: “Had the information impeaching Saad been disclosed prior to the close of evidence, this presumption and the normal rules concerning curative instructions likely would govern here.” Id. at *4.

  “Given the difficulty the jury faced in reaching a verdict, we cannot say with confidence that the undisclosed impeachment did not affect the jury’s judgment. Nor can we conclude that the district court’s instruction fully cured the prejudice that resulted from the government’s Brady violation.” Id. at *5.

  “Because there is a reasonable likelihood that the undisclosed evidence impeaching Saad could have affected the judgment of the jury, we are compelled to reverse the convictions and remand the case to the district court for further proceedings.” Id.

Of Note: It is unfathomable: how did CD Cal AUSAs not figure out that were calling a (lying) cooperator, and affirmatively assure the jury that she was not a cooperator, when the snitch had in fact been given a no-pros deal in a mortgage fraud case (apparently in the same U.S. Attorney’s office?) This is particularly outrageous in California, where ethical rules require prosecutors to affirmatively hunt down and disclose such information. See Cal. R. Prof. Conduct 3.8, available here. 

   In N.D. Cal, the vast majority of D.J.’s have granted Brady / 3.8 disclosure orders, setting deadlines for disclosure before trial. If such a pretrial order had been in place in Obagi, the government would have been more careful when checking on its own witnesses – and toothier remedies would have been available when this violation came to light. Obagi illustrates yet again why no case should go to trial in California, without a stout Brady / Rule 3.8 disclosure cut-off order in place.

 How to Use: Judge Bumatay’s dissent ably highlights the value of this decision for the defense. See id. at *5 (Bumatay, J. dissenting). He complains that the opinion essentially means de facto reversal anytime there is a Brady disclosure after closing arguments. Id. Judge Bumatay is also irked by the fact that the trial defense counsel declined the district court’s offers to recall the cooperator, Saad, to the witness stand, or to revisit closing arguments – yet the defendants still prevail on appeal. Id. at *6.

  Arguing for the broad scope of Obagi’s Brady holding? Start with the dissent’s helpful outline supporting that proposition.                                               

For Further Reading: In a grim milestone, last week the first COVID-19 death was reported out of Santa Rita Jail, when Deputy Oscar Rocha succumbed to the disease. See article here. 

  Over 100 inmates have now tested positive for COVID-19 at the jail. Though ninety-three of the inmates are deemed “asymptomatic,” in a deeply troubling interview, one allegedly “asymptomatic” inmate in the jail reports what that designation really means (or rather, what it doesn’t mean). See Infected Santa Rita inmate describes jail life amid COVID-19 outbreak, available here. 

 

 

Image of the Honorable Judge John Owens from https://www.law.com/therecorder/almID/1202638438346/Obamas+Judge+Picks+Advance+in+PostFilibuster+Senate%3Fmcode=1202617072607&curindex=4/?germane=1202638438346&id=1202625862932

 

Graph of comparative infection rates by Chief Assistant Candis Mitchell, available at: https://www.ndcalfpd.org/

 

 

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

 

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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: It Pays to Discover - Sedaghaty and Brady Violations

  An embarrassing Brady violation in a high profile and expensive

federal prosecution in the Pacific Northwest will surely send the message, and finally put DOJ on the path of real discovery reform.

   So we said after Ted Stevens.

  Déjà vu all over again. United States v. Pirouz Sedaghaty, 2013 WL 4490922 (9th Cir. Aug. 23, 2013), decision available here.

Players: Decision by Judge McKeown, joined by Judge Schroeder. Dissent by Judge Tallman. Big win by D. Oregon FPD Steven Wax.

Facts: The defendant, known as Pete Seda, lived in Ashland and was active in causes promoting the understanding of Islam. Id. Seda was the secretary of the U.S. branch of a Saudi aid organization, Al-Haramain. Id. at *3. The government suspected that Al-Haramain also funded mujahideen fighters in Chechnya. Id. at *3. At one point, foreign funds were put in Al-Haramain’s account in Ashland, an Al-Haramain officer came to the US, went to an Ashland bank with Seda, and together the officer and Seda withdrew over $140,000 in cashier’s checks. Id. The government argued those funds later went to the mujahideen. Id. at *4. Later, this same officer returned to Ashland and used $300,000 in travelers checks for the purchase of a prayer house. Id.  

  In 2001, Seda signed an IRS Form 990 – required for tax exempt organizations – that inaccurately reported some of the above transactions. Id. Seda was indicted for, among other things, filing a False Form 990. Id. 

  “The central issue at trial was whether the errors on the Form 990 were willful.” Id. at *5. The government characterized one witness, “Barbara Cabral,” as “critical” to its efforts to prove willfulness. Cabral’s was the only direct testimony linking Seda to efforts to fund the mujahideen. Id. at *8. 

  Seda was convicted at trial, and then the government revealed “a significant amount of evidence relating to” witness Cabral. Id. This undisclosed evidence included payments to Cabral’s husband, an offer of payment to Cabral herself shortly before trial, and undisclosed reports, draft reports, and interview notes. Id. 

  The district court found a discovery violation, but held it was not material to the conviction. Id.

Issue(s): “[T]he government concedes . . . that the withheld information is favorable to Seda and that it should have been turned over before trial. Our Brady analysis therefore hinges on materiality.” Id. at *9.

Held: “Viewing the suppressed evidence holistically in light of the other evidence, the withheld evidence undermines confidence in the outcome of the trial. . . . We conclude that Cabral's testimony was important enough that a changed perception of her credibility creates a reasonable probability of a different verdict. . . .  In light of the importance of allowing a full and fair cross examination of government witnesses whose testimony is important to the outcome of the case, Seda has established a Brady violation that merits a new trial.” Id. at *12 (internal quotations and citations omitted).  

Of Note: Here are some Sedaghty points gleaned for your next Brady argument.

• Materiality is evaluated “in terms of the suppressed evidence considered collectively, not item by item.” Id. at *9. 

• “Payments to a government witness are no small thing.” Id. at *10.

• The “uncertain nature” of an informal payment promise is particularly material, because it creates a greater incentive to please the promisor. Id.

• Exclusion of other impeachment evidence can increase the materiality of non-disclosed Brady material. Id. at *11.

How to Use: Sedaghty is a long opinion brimming good defense holdings. One important Fourth challenge relates to the overbreadth of computer searches. Judge McKeown asks, “May a broad ranging probable cause affidavit serve to expand the express limitations imposed by a magistrate in issuing the warrant itself?” Id. at *22. The Ninth’s view is clear: “We believe the answer is no. The affidavit as a whole cannot trump a limited warrant.” Id. . . . “We have never held that an affidavit could expand the scope of a legitimate warrant beyond its express limitations nor do we do so here.” Id. It’s a new Ninth rule, and a great one at that – a welcome addition to the line of Fourth Amendment law on overbroad computer searches.

                                               

For Further Reading: In an important development, A.G. Holder has warned in an editorial that the impact of sequestration on indigent defense undermines the right to a fair trial. See editorial here.

“Hello, my name is Brady” image from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjq_IthaW4kdNZ3c2GshQq5GgLkHISqxU2tm81l_HbwNXhf0-BnAX57ohsLcdvgOwIzk_pq7gMQ6k1H1zZjUaR1Uu1gDjz4VNp602Q_qFsqFSjWIAbOFnJGs6SYi9e7vZ2qO-jTwQ/s320/hello-my-name-is-brady.jpg

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