Sunday, August 21, 2016

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,

Image of Mr. Ebyam from

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


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