This document is a motion filed by defense attorneys to preclude prosecutors from using terms like "bribe", "bribery", or their synonyms when questioning witnesses, except during openings, closings, and jury instructions. The defense argues that these terms assume the defendants' mental state and are prejudicial, as bribery has a specific legal meaning under the relevant statutes. Witnesses can describe payments but cannot characterize them as bribes, as that goes to the ultimate issue for the jury to decide. The motion is based on evidentiary and constitutional rules regarding improper testimony on mental state and unfair prejudice.
Original Description:
Original Title
Defendants' Motion to Prohibit Term Bribe or Kickback
This document is a motion filed by defense attorneys to preclude prosecutors from using terms like "bribe", "bribery", or their synonyms when questioning witnesses, except during openings, closings, and jury instructions. The defense argues that these terms assume the defendants' mental state and are prejudicial, as bribery has a specific legal meaning under the relevant statutes. Witnesses can describe payments but cannot characterize them as bribes, as that goes to the ultimate issue for the jury to decide. The motion is based on evidentiary and constitutional rules regarding improper testimony on mental state and unfair prejudice.
This document is a motion filed by defense attorneys to preclude prosecutors from using terms like "bribe", "bribery", or their synonyms when questioning witnesses, except during openings, closings, and jury instructions. The defense argues that these terms assume the defendants' mental state and are prejudicial, as bribery has a specific legal meaning under the relevant statutes. Witnesses can describe payments but cannot characterize them as bribes, as that goes to the ultimate issue for the jury to decide. The motion is based on evidentiary and constitutional rules regarding improper testimony on mental state and unfair prejudice.
KAYE, McLANE & BEDNARSKI, LLP 2 128 North Fair Oaks Avenue Pasadena, California 91103 3 Telephone: (626) 844-7660 Facsimile: (626) 844-7670 4 [email protected] 5 Attorneys for Defendant P. Green 6 JEROME H. MOONEY III (SBN 199542) WESTON, GARROU, WALTERS & MOONEY 7 12121 Wilshire Blvd. Ste. 900 Los Angeles, Ca. 90025 8 (310) 442-0072 (310) 442-0899 9 [email protected] 10 Attorneys for Defendant G. Green 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 WESTERN DIVISION 14 15 UNITED STATES OF AMERICA, ) NO. CR 08-59(B)-GW 16 ) Plaintiff, ) DEFENDANTS’ JOINT MOTION IN 17 ) LIMINE TO PRECLUDE THE ) PROSECUTORS’S USE OF THE 18 v. ) TERM “BRIBE” OR ITS ) SYNONYMS AT TRIAL EXCEPT 19 ) DURING OPENING STATEMENT, ) CLOSING ARGUMENT; 20 GERALD GREEN AND PATRICIA ) DECLARATION OF MARILYN E. GREEN, ) BEDNARSKI 21 ) Defendants. ) Hearing Date: July 23, 2009 22 ) Hearing Time: 8: 00 a.m. ) 23 24 Defendants, Patricia Green and Gerald Green, jointly and by and through 25 their respective attorneys of record, hereby move this Honorable Court for an order 26 precluding the prosecutors from using the term “bribe,” “bribery, kickback or their 27 synonyms at trial except during opening statement (with limitations), closing 28 argument and instructions. This motion is made pursuant to the Fifth Amendment’s 1 Due Process Clause, Rules 701 and 403 of the Federal Rules of Evidence. This
2 motion is based upon the attached memorandum of points and authorities,
3 Declaration of Marilyn E. Bednarski, all files and records in this case, and any 4 further evidence as may be adduced at the hearing on this motion.
5 6 Respectfully submitted,
7 KAYE, McLANE & BEDNARSKI, LLP
8 9 DATED: July 12, 2009 By_______/S/____________________ MARILYN E. BEDNARSKI 10 Attorneys for Patricia Green 11 Respectfully submitted, 12 WESTON, GARROU, WALTERS & MOONEY 13 14 DATED: July 12, 2009 By__________/S/__________________ 15 JEROME H. MOONEY III Attorneys for Gerald Green 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. 3 SUMMARY OF ARGUMENT 4 The twenty-eight count Second Superceding Indictment, upon which the 5 defendants Gerald and Patricia Green will be tried alleges that the defendants 6 conspired to violate the Foreign Corrupt Practices Act-Bribery (hereinafter 7 “FCPA”), 18 U.S.C. 371 and 15 U.S.C. § 78dd-2(a)(1); Transported Funds to 8 Promote Bribery and Transacted In Criminally Derived Funds, 18 U.S.C. §§ 9 1956(a)(2)(A) and 1957; Obstructed Justice (only Gerald Green), 18 U.S.C. § 1519; 10 Subscribed to False Tax Returns (only Patricia Green), 26 U.S.C. § 7206(1); and 11 Forfeiture, 18 U.S.C. 981. 12 The essential issue at trial for the bribery, money laundering and false tax 13 filing counts is whether there is credible proof that the defendants had a “corrupt 14 purpose” in sending the monies they sent to Thailand. The FCPA prohibits U.S. 15 persons and businesses from "corruptly" making use of the mails or any means or 16 instrumentality of interstate commerce so as to offer, pay, promise, or authorize to 17 pay, either directly or indirectly, money or anything of value to any foreign official 18 or political party "in order to assist . . . in obtaining or retaining business for or with, 19 or directing business to, any person." 15 U.S.C. §§ 78dd-1, et. seq. 20 The FCPA, money laundering and conspiracy counts require the 21 government to prove the underlying crime alleged i.e., bribery under the FCPA and 22 the false tax filing counts require the government to prove that Patricia Green knew 23 that the returns she subscribed to which took commissions paid by SASO and FFM 24 as deductions included bribes and were not legitimate deductions. 25 Thus, corrupt intent –the mental state that is a prerequisite to a bribe is a 26 necessary element of all these counts. Because “bribery” within the context of the 27 FCPA has a specific legal meaning, and that specific legal meaning must be met by 28 3 1 proof beyond a reasonable doubt, it is central to the fairness of this trial that the 2 prosecutors do not assume the very issue to be proven in this case by inserting the 3 highly provocative words “bribe,” “bribery” or “kickbacks” or their synonyms into 4 its questioning of witnesses during trial. 1 5 As this motion sets forth, “bribery” – as applied to the relevant statutes in 6 this case – has a legal definition that requires a finding of the defendants’ “corrupt 7 purpose” in making payments. Any government questions which include the word 8 bribe or lay witness(es)’ testimony2 using such term is improper as it is assumes the 9 mental state of the defendants in violation of Federal Rule of Evidence 701. 10 Witnesses appropriately can testify concerning their personal knowledge of the 11 details of monetary payments made by the Greens to various entities and 12 individuals. To go further and characterize any such payments as “bribes,” presents 13 inadmissible and improper testimony to the jury concerning the defendants’ state of 14 mind - i.e. that the defendants made the payments with a corrupt purpose. This is an 15 issue for the jury to decide. 16 Additionally, any relevance the term “bribe” may have is clearly 17 outweighed by the substantial risk of prejudice to the defendants. Specifically, lay 18 persons between themselves and even the Federal Criminal Code hold different 19 definitions of the term “bribe.” It is likely that the term “bribe” posed in a question 20 by the government, may have a completely separate subjective meaning to the lay 21 witness than intended, and it will be impossible for the jury to discern if the 22 testimony given is consistent with the legal definition of the term in the charging 23 statutes. The use of the term “bribe” at trial therefore can lead to gross injustice in 24 1 25 For brevity purposes instead of listing a string of synonyms each time, the undersigned intend bribe in this motion to include all synonymous provocative terms. 26 2 The subject of “expert” testimony in this area is set forth in detail in a separate 27 motion in limine regarding the government’s proposed expert witness Johnson on tax law and regulations “expert witnesses is on file and set for hearing July 23. 28 4 1 this case in the absence of an order precluding it and its synonyms during 2 questioning of witnesses and with limitation during opening statement. 3 4 II. 5 ARGUMENT 6 A. THE TERM “BRIBE” WILL CONSTITUTE IMPROPER TESTIMONY 7 REGARDING THE DEFENDANTS’ MENTAL STATE 8 While prosecutors are entitled to “prosecute with earnestness and vigor,” 9 they must “refrain from improper methods calculated to produce a wrongful 10 conviction.” United States v. Young, 470 U.S. 1, 7 (1985). It is error for a 11 prosecutor to engage in a deliberate attempt to put inadmissible evidence before the 12 jury. People v. Bell (1989) 49 Cal.3d 502, 532. In this case, it is likely the 13 government will attempt to use the loaded and prejudicial term “bribe” as much as 14 possible in questions posed to lay witnesses in an attempt to improperly sway the 15 jury. This tactic is not without heinous precedent in this case and in other cases. 16 See, United States v. Matthews, 787 F.2d 38 (2nd Cir. 1986)(noting that “Although 17 the prosecutor managed to incorporate the words ‘bribe’, ‘bribery’, and ‘slush fund’ 18 into every possible question, and prominently displayed one or more of these words 19 in his blown-up summary charts, [the witness] testified that he neither heard nor 20 used any of these words until they were spoken to him in the United States 21 Attorneys Office in 1980, some two to three years after his alleged conversations 22 with [the defendant.]”) 23 The discovery reveals the government used this form of questioning 24 witnesses during its investigation of this case. The term “bribe” and kickback is 25 repeatedly suggested in questioning not only by agents but also by prosecutors in 26 the Grand Jury proceedings. Declaration of Bednarski, at ¶2. Examples from the 27 investigation include: 28 5 1 IRS case agent Berryman posed to witness Eli Boyer (a financial advisor to 2 the Greens) a hypothetical situation that was a bribe and asked Mr. Boyer if he knew 3 bribes were illegal. Berryman MOI 7/28/08 bate stamp 29837. 4 IRS case agent Berryman asked IRS auditor Sutton if he had suspicions 5 whether the wire transfers to Jittisopa could be involved in foreign bribery, or if he 6 had discovered the payments to Jittisopa were bribes to her mother, would he have 7 disallowed the deductions. Berryman MOI 7/28/08 bate stamp 29840. The same 8 agent asked cooperating witness /book keeper Susan Shore if she heard discussions 9 between the Greens and the CPAs who prepared the tax returns about deducting 10 commissions if bribery was involved. MOI 7/16/08 bate stamp 29847. 11 The FBI case agents also used the word bribery in their questioning of 12 witnesses. FBI case agents Rivas and Binder asked Yanichnat “Oom” 13 Chalermtiarana about bribes and she said it would not surprise her if the governor 14 received bribes and that she heard rumors in relation to Green and others about 15 Juthamas receiving bribes or gifts in exchange for preference (FBI 302 6/4/08 bate 16 stamp 40420). These same agents interviewed Jocelyn McCormick ( a subcontractor 17 who worked for the Greens) who said Thailand was corrupt and that business in 18 Thailand was done through commissions or kickbacks. FBI 302 3/20/08 bate stamp 19 40490. 20 Prosecutors questioned at least three witnesses (out of ten whose transcripts 21 were provided) using the word bribery, bribe or kickbacks in their questions to 22 witnesses. (Counsel is prepared to give examples to this Court at the hearing, but 23 not here so that this pleading need not take on Grand Jury confidentiality issues.) 24 Bednarski Decl. at ¶3. 25 Under the FCPA the term “bribery” has a specific statutory definition that 26 necessarily includes the requirement that payments be made with a “corrupt 27 purpose.” See, 15 U.S.C. §§ 78dd-1, et. seq. Implicit in the legal term “bribery” is 28 6 1 that the briber had a specific mental state, i.e. a corrupt purpose, in making the 2 payment to the bribee. 3 Federal Rule of Evidence, Rule 701 states: 4 If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences 5 which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact 6 in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. 7 Here, none of the three permitted basis under 701 for lay opinion testimony 8 exist. First, the witnesses will have no personal knowledge or perception of 9 whether or not the defendants’ mental state embodied “corrupt purpose” 10 contemporaneous with payments made. Witnesses Prater and Kelly, both of whom 11 were directors of the Film Festival and worked closely and full time with the Greens 12 and cooperating witness book keeper Susan Shore, have all affirmatively told the 13 investigators that they never heard the Greens use the term bribe or kickback and 14 that the Greens have never stated they were bribing anyone. 15 Witnesses without personal knowledge may not testify to the defendants’ 16 mental state(s). The witnesses may properly testify to all other aspects of these 17 transactions for which they had personal knowledge, not otherwise inadmissible on 18 other grounds, i.e. who made payments, where, why and how? However it is for the 19 jury to determine what the defendants’ mental state was, i.e., whether the alleged 20 payments were made with the requisite corrupt intent to constitute a bribe. 21 Second, as set forth thoroughly in the Rule 403 section below, using the 22 term “bribe” will not clarify the testimony or aid in the determination of a fact at 23 issue. In fact, allowing lay witness testimony regarding the witness’ subjective 24 interpretation of the word “bribe” will only serve to muddy the water in this crucial 25 area and prejudice the defendants. 26 Finally, while expecting a witness to be familiar with the precise legal 27 28 7 1 definition of “bribery” would likely require some specialized knowledge, even a 2 properly admitted expert witness may not “state an opinion or inference as to 3 whether the defendant did or did not have the mental state or condition constituting 4 an element of the crime charged or defense thereto. Such ultimate issues are matters 5 for the trier of fact alone.” See, FRE 704(b). Using the term “bribe” during 6 questioning of witnesses at trial, however, will do exactly that. 7 The term “bribe” will obviously be used in instructions and is fair game for 8 argument and opening statement with respect to what the government believes it 9 will be able to prove (although not attributed to witnesses). Prosecutors should be 10 precluded from using the word and other provocative synonyms during questioning 11 of witnesses, however, as it constitutes improper lay witness opinion under FRE 12 701. 13 14 B. THE PROBATIVE VALUE OF USING THE TERM “BRIBE” DURING 15 TRIAL IS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF 16 UNFAIR PREJUDICE 17 The use of the word during questioning should also be precluded as more 18 prejudicial than probative pursuant to Rule 403 of the Federal Rules of Evidence. 19 Rule 403 provides: 20 Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the 21 issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. 22 23 While all inculpatory evidence is prejudicial, unfair prejudice arises: 24 ...from an aspect of the evidence other than its tendency to make the existence of a material fact more or less probable, e.g., that aspect of 25 the evidence which makes conviction more likely because it provokes an emotional response in the jury or otherwise tends to 26 affect adversely the jury’s attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged. 27 28 8 1 United States v. Fagan, 996 F.2d 1009, 1015 (9th Cir. 1993), citing, United States v. 2 Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982). 3 Any relevance of the use of the term “bribe” is substantially outweighed by its 4 risk of unfair prejudice, and the term will confuse the jury and draw its attention away 5 from the main issue in the case - the state of mind of the defendants in making the 6 payments to Thailand. 7 Examples of how insidious the use of the word can be include, for example, if 8 the government poses a question to a witness “on what dates were these bribes 9 made?” The witness’ probable answer, a date such as October 23, 2003, would 10 improperly contain an improper assumption of the witness that a bribe was paid. The 11 witness can testify to the date, but not to mental intent. Simply inserting the word 12 bribe into the question, the prosecutor thereby leads the witness to testify implicitly 13 that the payment was made with a corrupt purpose. The logical inference for the jury 14 to draw from this testimony is clear: the defendants had corrupt intent in making the 15 October 23, 2003 payment referred to. 16 In a back door way, the prosecutor would be using lay opinion testimony to 17 prove the defendants’ mental state. Rather than properly considering evidence of the 18 Greens’ specific intent, the jury will find the requisite intent per se based on the lay 19 opinion of a former director, book keeper, etc. See United States v. Vallejo, 237 F.3d 20 1008 (9th Cir. 2001) (Testimony of government agent should have been excluded 21 pursuant to Rules of Evidence 403 where he testified to the different roles played by 22 various members of a drug trafficking organizations, and although he did not cast the 23 defendant in a particular role, the implication of his testimony was that the defendant 24 had knowledge of how the entire organization operated, and thus had specific 25 knowledge, the only issue in the case, that he was carrying drugs). 26 The probative value of this testimony (which is minimal in light of the other 27 evidence available) is thus substantially outweighed by the risk of prejudice suffered 28 9 1 by the defendants. The government’s own witnesses have said that the Greens never 2 used the word bribe or kickback or grease payments and never admitted having 3 bribed the governor. 4 To use the same example as above, if this Motion is granted, the government 5 will simply have to ask the witness “On what dates were these payments made?” This 6 will assure that the answer contains only the witnesses personal observations and 7 doesn’t improperly delve into the defendants’ mental state. Given the agents and 8 prosecutor’s history of using these provocative terms in witness interviews and grand 9 jury, it is a very real problem we face. 10 Use of the term “bribe” by lay witnesses also risks not only the substantial 11 confusion of the jury but of the lay witnesses themselves. The law requires that 12 something extra is needed to transform a payment into a bribe. A lay witness may not 13 know that. A payment to a person with status or position to be able to do an at is not a 14 bribe if the payment is not made with corrupt purpose to influence an act. A lay 15 witness may not make that distinction. Additionally, a payment must be made to 16 influence an official act, not a private act and a lay witness may not understand that. 17 The word corrupt is capable of different legal meanings in different contexts. United 18 States v. Cohen, 202 F.Supp. 587, 588 (D.Conn. 1962). 19 There are multiple definitions of the term “bribe” found just in the federal 20 criminal code, let alone the numerous subjective meanings the term may have to a lay 21 witness. See, United States v. Zacher, 586 F.2d 912, 915 fn. 7 (2d Cir. 1978)(in this 22 medicaid fraud case the panel stated “[o]ur examination of this and other federal 23 statutes, however, has failed to uncover any uniform definition of the term “bribe” as 24 used in the federal code.” ) Thus, questions and answers that contain the term “bribe” 25 will present the jury with three possible definitions of the term to reconcile during 26 deliberations: the possible meaning to the government questioner, the possible 27 meaning to the witness, and the actual legal definition given by this Court that they 28 10 1 are to apply. 2 Given the grave risks of prejudice to the defendant the pejorative term “bribe” 3 presents and the fact that it is so easily substituted with the term “payment” for the 4 purposes of the trial, the prosecutors should be precluded from using the word or its 5 synonyms during questioning of witnesses and should be limited in opening statement 6 to stating what it expects to be able to prove and not attribute these words to 7 witnesses. 8 III. 9 CONCLUSION 10 For the foregoing reasons, and pursuant to the Fifth Amendment’s Due Process 11 clause, Rule 701 and 403, the defendants respectfully requests that this Court 12 preclude the use of the term “bribe” and synonyms at trial during the questioning of 13 witnesses and with limitations as suggested during opening statement. 14 15 Respectfully submitted, 16 KAYE, McLANE & BEDNARSKI, LLP 17 DATED: July 12, 2009 By_________/S/___________________ 18 MARILYN E. BEDNARSKI Attorneys for Patricia Green 19 20 Respectfully submitted, 21 WESTON, GARROU, WALTERS & MOONEY 22 DATED: July 12, 2009 By_________/S/___________________ 23 JEROME H. MOONEY III Attorneys for Gerald Green 24 25 26 27 28 11 1 DECLARATION OF MARILYN E. BEDNARSKI 2 3 I, MARILYN E. BEDNARSKI, hereby state and declare as follows: 4 1. I am counsel of record for Patricia Green in the above entitled matter. 5 By agreement of Jerome Mooney as counsel for defendant Gerald Green, I have been 6 authorized to file this motion jointly on behalf of our respective clients. 7 2. During my review of government interviews with percipient 8 witnesses contained in FBI 302 forms produced in discovery, I observed a pattern 9 where the government would repeatedly suggest the terms “bribe” or “kickbacks” 10 during their questioning. My citations in this pleading to such reports are based on 11 my review of the discovery and are true and correct to the best of my knowledge. 12 3. I have reviewed grand jury transcripts provided regarding ten 13 witnesses called to the Grand Jury. Those transcripts reflect that prosecutors with at 14 least three of the ten witnesses used the word bribery, bribe or kickbacks in their 15 questions to witnesses. I am prepared to give these examples to this Court at the 16 hearing on this motion, but have not done so here so as not to risk infecting this 17 pleading with Grand Jury confidentiality issues and to avoid having to file it under 18 seal in order to avoid such risk. 19 I declare under penalty of perjury that the foregoing is true and correct to the 20 best of my knowledge. Executed this 12th day of July, 2009 at Pasadena, Ca. 21 22 _____/S/___________________________ MARILYN E. BEDNARSKI 23 Attorney for Patricia Green 24 25 26 27 28 12
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