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MARILYN E. BEDNARSKI (SBN 105322)KAYE, McLANE & BEDNARSKI, LLP128 North Fair Oaks AvenuePasadena, California 91103Telephone: (626) 844-7660Facsimile: (626) [email protected]
Attorneys for Defendant P. Green
JEROME H. MOONEY III (SBN 199542) WESTON, GARROU, WALTERS & MOONEY12121 Wilshire Blvd. Ste. 900Los Angeles, Ca. 90025(310) 442-0072(310) [email protected]
Attorneys for Defendant G. Green
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
GERALD GREEN AND PATRICIAGREEN,
Defendants.
)))))))))))))))
NO. CR 08-59(B)-GW
DEFENDANTS’ JOINT MOTION INLIMINE TO PRECLUDE THEPROSECUTORS’S USE OF THETERM “BRIBE” OR ITSSYNONYMS AT TRIAL EXCEPTDURING OPENING STATEMENT,CLOSING ARGUMENT;DECLARATION OF MARILYN E.BEDNARSKI
Hearing Date: July 23, 2009Hearing Time: 8: 00 a.m.
Defendants, Patricia Green and Gerald Green, jointly and by and through
their respective attorneys of record, hereby move this Honorable Court for an order
precluding the prosecutors from using the term “bribe,” “bribery, kickback or their
synonyms at trial except during opening statement (with limitations), closing
argument and instructions. This motion is made pursuant to the Fifth Amendment’s
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Due Process Clause, Rules 701 and 403 of the Federal Rules of Evidence. This
motion is based upon the attached memorandum of points and authorities,
Declaration of Marilyn E. Bednarski, all files and records in this case, and any
further evidence as may be adduced at the hearing on this motion.
Respectfully submitted,
KAYE, McLANE & BEDNARSKI, LLP
DATED: July 12, 2009 By_______/S/____________________ MARILYN E. BEDNARSKI Attorneys for Patricia Green
Respectfully submitted,
WESTON, GARROU, WALTERS & MOONEY
DATED: July 12, 2009 By__________/S/__________________ JEROME H. MOONEY III Attorneys for Gerald Green
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MEMORANDUM OF POINTS AND AUTHORITIES
I.
SUMMARY OF ARGUMENT
The twenty-eight count Second Superceding Indictment, upon which the
defendants Gerald and Patricia Green will be tried alleges that the defendants
conspired to violate the Foreign Corrupt Practices Act-Bribery (hereinafter
“FCPA”), 18 U.S.C. 371 and 15 U.S.C. § 78dd-2(a)(1); Transported Funds to
Promote Bribery and Transacted In Criminally Derived Funds, 18 U.S.C. §§
1956(a)(2)(A) and 1957; Obstructed Justice (only Gerald Green), 18 U.S.C. § 1519;
Subscribed to False Tax Returns (only Patricia Green), 26 U.S.C. § 7206(1); and
Forfeiture, 18 U.S.C. 981.
The essential issue at trial for the bribery, money laundering and false tax
filing counts is whether there is credible proof that the defendants had a “corrupt
purpose” in sending the monies they sent to Thailand. The FCPA prohibits U.S.
persons and businesses from "corruptly" making use of the mails or any means or
instrumentality of interstate commerce so as to offer, pay, promise, or authorize to
pay, either directly or indirectly, money or anything of value to any foreign official
or political party "in order to assist . . . in obtaining or retaining business for or with,
or directing business to, any person." 15 U.S.C. §§ 78dd-1, et. seq.
The FCPA, money laundering and conspiracy counts require the
government to prove the underlying crime alleged i.e., bribery under the FCPA and
the false tax filing counts require the government to prove that Patricia Green knew
that the returns she subscribed to which took commissions paid by SASO and FFM
as deductions included bribes and were not legitimate deductions.
Thus, corrupt intent –the mental state that is a prerequisite to a bribe is a
necessary element of all these counts. Because “bribery” within the context of the
FCPA has a specific legal meaning, and that specific legal meaning must be met by
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For brevity purposes instead of listing a string of synonyms each time, the1
undersigned intend bribe in this motion to include all synonymous provocative terms.
The subject of “expert” testimony in this area is set forth in detail in a separate2
motion in limine regarding the government’s proposed expert witness Johnson on taxlaw and regulations “expert witnesses is on file and set for hearing July 23.
4
proof beyond a reasonable doubt, it is central to the fairness of this trial that the
prosecutors do not assume the very issue to be proven in this case by inserting the
highly provocative words “bribe,” “bribery” or “kickbacks” or their synonyms into
its questioning of witnesses during trial. 1
As this motion sets forth, “bribery” – as applied to the relevant statutes in
this case – has a legal definition that requires a finding of the defendants’ “corrupt
purpose” in making payments. Any government questions which include the word
bribe or lay witness(es)’ testimony using such term is improper as it is assumes the2
mental state of the defendants in violation of Federal Rule of Evidence 701.
Witnesses appropriately can testify concerning their personal knowledge of the
details of monetary payments made by the Greens to various entities and
individuals. To go further and characterize any such payments as “bribes,” presents
inadmissible and improper testimony to the jury concerning the defendants’ state of
mind - i.e. that the defendants made the payments with a corrupt purpose. This is an
issue for the jury to decide.
Additionally, any relevance the term “bribe” may have is clearly
outweighed by the substantial risk of prejudice to the defendants. Specifically, lay
persons between themselves and even the Federal Criminal Code hold different
definitions of the term “bribe.” It is likely that the term “bribe” posed in a question
by the government, may have a completely separate subjective meaning to the lay
witness than intended, and it will be impossible for the jury to discern if the
testimony given is consistent with the legal definition of the term in the charging
statutes. The use of the term “bribe” at trial therefore can lead to gross injustice in
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this case in the absence of an order precluding it and its synonyms during
questioning of witnesses and with limitation during opening statement.
II.
ARGUMENT
A. THE TERM “BRIBE” WILL CONSTITUTE IMPROPER TESTIMONY
REGARDING THE DEFENDANTS’ MENTAL STATE
While prosecutors are entitled to “prosecute with earnestness and vigor,”
they must “refrain from improper methods calculated to produce a wrongful
conviction.” United States v. Young, 470 U.S. 1, 7 (1985). It is error for a
prosecutor to engage in a deliberate attempt to put inadmissible evidence before the
jury. People v. Bell (1989) 49 Cal.3d 502, 532. In this case, it is likely the
government will attempt to use the loaded and prejudicial term “bribe” as much as
possible in questions posed to lay witnesses in an attempt to improperly sway the
jury. This tactic is not without heinous precedent in this case and in other cases.
See, United States v. Matthews, 787 F.2d 38 (2 Cir. 1986)(noting that “Althoughnd
the prosecutor managed to incorporate the words ‘bribe’, ‘bribery’, and ‘slush fund’
into every possible question, and prominently displayed one or more of these words
in his blown-up summary charts, [the witness] testified that he neither heard nor
used any of these words until they were spoken to him in the United States
Attorneys Office in 1980, some two to three years after his alleged conversations
with [the defendant.]”)
The discovery reveals the government used this form of questioning
witnesses during its investigation of this case. The term “bribe” and kickback is
repeatedly suggested in questioning not only by agents but also by prosecutors in
the Grand Jury proceedings. Declaration of Bednarski, at ¶2. Examples from the
investigation include:
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IRS case agent Berryman posed to witness Eli Boyer (a financial advisor to
the Greens) a hypothetical situation that was a bribe and asked Mr. Boyer if he knew
bribes were illegal. Berryman MOI 7/28/08 bate stamp 29837.
IRS case agent Berryman asked IRS auditor Sutton if he had suspicions
whether the wire transfers to Jittisopa could be involved in foreign bribery, or if he
had discovered the payments to Jittisopa were bribes to her mother, would he have
disallowed the deductions. Berryman MOI 7/28/08 bate stamp 29840. The same
agent asked cooperating witness /book keeper Susan Shore if she heard discussions
between the Greens and the CPAs who prepared the tax returns about deducting
commissions if bribery was involved. MOI 7/16/08 bate stamp 29847.
The FBI case agents also used the word bribery in their questioning of
witnesses. FBI case agents Rivas and Binder asked Yanichnat “Oom”
Chalermtiarana about bribes and she said it would not surprise her if the governor
received bribes and that she heard rumors in relation to Green and others about
Juthamas receiving bribes or gifts in exchange for preference (FBI 302 6/4/08 bate
stamp 40420). These same agents interviewed Jocelyn McCormick ( a subcontractor
who worked for the Greens) who said Thailand was corrupt and that business in
Thailand was done through commissions or kickbacks. FBI 302 3/20/08 bate stamp
40490.
Prosecutors questioned at least three witnesses (out of ten whose transcripts
were provided) using the word bribery, bribe or kickbacks in their questions to
witnesses. (Counsel is prepared to give examples to this Court at the hearing, but
not here so that this pleading need not take on Grand Jury confidentiality issues.)
Bednarski Decl. at ¶3.
Under the FCPA the term “bribery” has a specific statutory definition that
necessarily includes the requirement that payments be made with a “corrupt
purpose.” See, 15 U.S.C. §§ 78dd-1, et. seq. Implicit in the legal term “bribery” is
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that the briber had a specific mental state, i.e. a corrupt purpose, in making the
payment to the bribee.
Federal Rule of Evidence, Rule 701 states:
If the witness is not testifying as an expert, the witness’ testimony in theform of opinions or inferences is limited to those opinions or inferenceswhich are (a) rationally based on the perception of the witness, (b) helpful toa clear understanding of the witness’ testimony or the determination of a factin issue, and (c) not based on scientific, technical, or other specializedknowledge within the scope of Rule 702.
Here, none of the three permitted basis under 701 for lay opinion testimony
exist. First, the witnesses will have no personal knowledge or perception of
whether or not the defendants’ mental state embodied “corrupt purpose”
contemporaneous with payments made. Witnesses Prater and Kelly, both of whom
were directors of the Film Festival and worked closely and full time with the Greens
and cooperating witness book keeper Susan Shore, have all affirmatively told the
investigators that they never heard the Greens use the term bribe or kickback and
that the Greens have never stated they were bribing anyone.
Witnesses without personal knowledge may not testify to the defendants’
mental state(s). The witnesses may properly testify to all other aspects of these
transactions for which they had personal knowledge, not otherwise inadmissible on
other grounds, i.e. who made payments, where, why and how? However it is for the
jury to determine what the defendants’ mental state was, i.e., whether the alleged
payments were made with the requisite corrupt intent to constitute a bribe.
Second, as set forth thoroughly in the Rule 403 section below, using the
term “bribe” will not clarify the testimony or aid in the determination of a fact at
issue. In fact, allowing lay witness testimony regarding the witness’ subjective
interpretation of the word “bribe” will only serve to muddy the water in this crucial
area and prejudice the defendants.
Finally, while expecting a witness to be familiar with the precise legal
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definition of “bribery” would likely require some specialized knowledge, even a
properly admitted expert witness may not “state an opinion or inference as to
whether the defendant did or did not have the mental state or condition constituting
an element of the crime charged or defense thereto. Such ultimate issues are matters
for the trier of fact alone.” See, FRE 704(b). Using the term “bribe” during
questioning of witnesses at trial, however, will do exactly that.
The term “bribe” will obviously be used in instructions and is fair game for
argument and opening statement with respect to what the government believes it
will be able to prove (although not attributed to witnesses). Prosecutors should be
precluded from using the word and other provocative synonyms during questioning
of witnesses, however, as it constitutes improper lay witness opinion under FRE
701.
B. THE PROBATIVE VALUE OF USING THE TERM “BRIBE” DURING
TRIAL IS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF
UNFAIR PREJUDICE
The use of the word during questioning should also be precluded as more
prejudicial than probative pursuant to Rule 403 of the Federal Rules of Evidence.
Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste oftime, or needless presentation of cumulative evidence.
While all inculpatory evidence is prejudicial, unfair prejudice arises:
...from an aspect of the evidence other than its tendency to make theexistence of a material fact more or less probable, e.g., that aspect ofthe evidence which makes conviction more likely because itprovokes an emotional response in the jury or otherwise tends toaffect adversely the jury’s attitude toward the defendant wholly apartfrom its judgment as to his guilt or innocence of the crime charged.
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United States v. Fagan, 996 F.2d 1009, 1015 (9th Cir. 1993), citing, United States v.
Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982).
Any relevance of the use of the term “bribe” is substantially outweighed by its
risk of unfair prejudice, and the term will confuse the jury and draw its attention away
from the main issue in the case - the state of mind of the defendants in making the
payments to Thailand.
Examples of how insidious the use of the word can be include, for example, if
the government poses a question to a witness “on what dates were these bribes
made?” The witness’ probable answer, a date such as October 23, 2003, would
improperly contain an improper assumption of the witness that a bribe was paid. The
witness can testify to the date, but not to mental intent. Simply inserting the word
bribe into the question, the prosecutor thereby leads the witness to testify implicitly
that the payment was made with a corrupt purpose. The logical inference for the jury
to draw from this testimony is clear: the defendants had corrupt intent in making the
October 23, 2003 payment referred to.
In a back door way, the prosecutor would be using lay opinion testimony to
prove the defendants’ mental state. Rather than properly considering evidence of the
Greens’ specific intent, the jury will find the requisite intent per se based on the lay
opinion of a former director, book keeper, etc. See United States v. Vallejo, 237 F.3d
1008 (9 Cir. 2001) (Testimony of government agent should have been excludedth
pursuant to Rules of Evidence 403 where he testified to the different roles played by
various members of a drug trafficking organizations, and although he did not cast the
defendant in a particular role, the implication of his testimony was that the defendant
had knowledge of how the entire organization operated, and thus had specific
knowledge, the only issue in the case, that he was carrying drugs).
The probative value of this testimony (which is minimal in light of the other
evidence available) is thus substantially outweighed by the risk of prejudice suffered
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2810
by the defendants. The government’s own witnesses have said that the Greens never
used the word bribe or kickback or grease payments and never admitted having
bribed the governor.
To use the same example as above, if this Motion is granted, the government
will simply have to ask the witness “On what dates were these payments made?” This
will assure that the answer contains only the witnesses personal observations and
doesn’t improperly delve into the defendants’ mental state. Given the agents and
prosecutor’s history of using these provocative terms in witness interviews and grand
jury, it is a very real problem we face.
Use of the term “bribe” by lay witnesses also risks not only the substantial
confusion of the jury but of the lay witnesses themselves. The law requires that
something extra is needed to transform a payment into a bribe. A lay witness may not
know that. A payment to a person with status or position to be able to do an at is not a
bribe if the payment is not made with corrupt purpose to influence an act. A lay
witness may not make that distinction. Additionally, a payment must be made to
influence an official act, not a private act and a lay witness may not understand that.
The word corrupt is capable of different legal meanings in different contexts. United
States v. Cohen, 202 F.Supp. 587, 588 (D.Conn. 1962).
There are multiple definitions of the term “bribe” found just in the federal
criminal code, let alone the numerous subjective meanings the term may have to a lay
witness. See, United States v. Zacher, 586 F.2d 912, 915 fn. 7 (2d Cir. 1978)(in this
medicaid fraud case the panel stated “[o]ur examination of this and other federal
statutes, however, has failed to uncover any uniform definition of the term “bribe” as
used in the federal code.” ) Thus, questions and answers that contain the term “bribe”
will present the jury with three possible definitions of the term to reconcile during
deliberations: the possible meaning to the government questioner, the possible
meaning to the witness, and the actual legal definition given by this Court that they
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are to apply.
Given the grave risks of prejudice to the defendant the pejorative term “bribe”
presents and the fact that it is so easily substituted with the term “payment” for the
purposes of the trial, the prosecutors should be precluded from using the word or its
synonyms during questioning of witnesses and should be limited in opening statement
to stating what it expects to be able to prove and not attribute these words to
witnesses.
III.
CONCLUSION
For the foregoing reasons, and pursuant to the Fifth Amendment’s Due Process
clause, Rule 701 and 403, the defendants respectfully requests that this Court
preclude the use of the term “bribe” and synonyms at trial during the questioning of
witnesses and with limitations as suggested during opening statement.
Respectfully submitted,
KAYE, McLANE & BEDNARSKI, LLP
DATED: July 12, 2009 By_________/S/___________________ MARILYN E. BEDNARSKI Attorneys for Patricia Green
Respectfully submitted,
WESTON, GARROU, WALTERS & MOONEY
DATED: July 12, 2009 By_________/S/___________________ JEROME H. MOONEY III Attorneys for Gerald Green
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DECLARATION OF MARILYN E. BEDNARSKI
I, MARILYN E. BEDNARSKI, hereby state and declare as follows:
1. I am counsel of record for Patricia Green in the above entitled matter.
By agreement of Jerome Mooney as counsel for defendant Gerald Green, I have been
authorized to file this motion jointly on behalf of our respective clients.
2. During my review of government interviews with percipient
witnesses contained in FBI 302 forms produced in discovery, I observed a pattern
where the government would repeatedly suggest the terms “bribe” or “kickbacks”
during their questioning. My citations in this pleading to such reports are based on
my review of the discovery and are true and correct to the best of my knowledge.
3. I have reviewed grand jury transcripts provided regarding ten
witnesses called to the Grand Jury. Those transcripts reflect that prosecutors with at
least three of the ten witnesses used the word bribery, bribe or kickbacks in their
questions to witnesses. I am prepared to give these examples to this Court at the
hearing on this motion, but have not done so here so as not to risk infecting this
pleading with Grand Jury confidentiality issues and to avoid having to file it under
seal in order to avoid such risk.
I declare under penalty of perjury that the foregoing is true and correct to the
best of my knowledge. Executed this 12th day of July, 2009 at Pasadena, Ca.
_____/S/___________________________MARILYN E. BEDNARSKIAttorney for Patricia Green
