Prosecutor Hides the Perjury Ball In Grand Jury, 9th Circuit Holds Harmless

October 24, 2016 (Fault Lines) — The ham sandwich that was indicted in this case was Jamie Harmon, a criminal defense attorney who was later convicted of laundering money for a client. The issue at trial was what she knew and when she knew it: whether she knew that monies given to her by a client were the proceeds of his illegal activity, monies that Harmon soon gave back to the client weeks later and the client then pocketed.

What was at stake at her appeal was not what Harmon knew, but rather whether the federal prosecutor’s failure to correct perjurious testimony before the grand jury warranted a post-trial dismissal of the indictment. The 9^th Circuit Court of Appeals noted that the prosecutor stood silent while this star stoolie lied to the grand jury, thrice:

At his first grand jury session (and apparently due to a grand juror’s concern), the prosecutor asked Ebyam if he had received any promises or benefits in exchange for his testimony. Ebyam said he had no obligation to testify, as he had been sentenced and had served his time. He explained that he was testifying voluntarily because he “want[ed] to be a member of society” again. Neither the prosecutor nor Ebyam mentioned the plea agreement’s requirement that he cooperate after sentencing or possibly face additional charges.

At his second session, the prosecutor asked Ebyam if he was testifying on his own accord. Ebyam stated that he was under no obligation to cooperate, and again there was no mention of the plea agreement.

At his third session, a grand juror asked Ebyam: “What are you doing now?” The prosecutor stepped in before Ebyam could answer and posed a different question: “Are you receiving any benefit from your cooperation with the government, either for your testimony today or any other type of testimony on this particular case?” Ebyam answered: “I’m not under indictment. I’m not getting any paychecks . . . . there’s no secret benefit down the line.” (Emphasis must be added here.)

These were no mere peccadilloes on the part of Ebyam, as these were big lies that were crucial to his credibility as a cooperating witness.  The assistant U.S. Attorney never stepped in to correct them, and thus the grand jury was never told that: (i) as per a plea agreement with his/Harmon’s vaunted prosecutors, Ebyam was required to testify before the grand jury on pain of being indicted again for additional charges; (ii) he was being paid taxpayer coin for his role in additional snitching unrelated government investigations. To state the obvious, this AUSA did not cut square corners while making his case to the grand jury.

As for the (not-so) spoiler-alert of how the 9th Circuit sided, the government’s misconduct during the grand jury proceedings was deemed “harmless” due to Harmon’s subsequent jury conviction, because of the relevant Supreme Court precedent of U.S. v. Mechanik, which dictates that “any error in the grand jury proceeding connected with the charging decision [is deemed] harmless beyond a reasonable doubt” as a matter of law.

The Court decided that evidence of Ebyam being paid government coin for snitching on other matters was “overkill,” in that the defense attorney was able to show the jury that Ebyam was cooperating with the government in Harlan’s case alone, so thus the jury would’ve reached the same result anyways. Well, an effective cross examination is in essence an “overkill.”

Cross examination is a zero-sum game, and Ebyam was the government’s key witness against Harmon. Either Harmon’s attorneys pulverize Ebyam on the stand with anything and everything within legal and ethical bounds, or she likely ends up in a cage. Defending federal prosecutions is a high stakes enterprise, and if the defense is deprived of impeachment ammunition the consequences can be dire.

In this case, the 9^th Circuit decided not to publish the name of the AUSA, unlike at least one other case before it involving prosecutorial misconduct (the latter case was heard en banc). Ironically, had the AUSA disclosed to the grand jury the full extent and circumstances of Ebyam’s cooperation, it would’ve probably still have gottem the grand jury to indict under a probable cause standard. With Harmon, the government got its overkill and walked away with a slight pow-pow, as the 9^th Circuit recommended “a state bar inquiry or an investigation by the Office of Professional Responsibility.” That’ll show them.

The U.S. Attorneys’ Manual itself frowns upon perjury before a grand jury, as it adopts the admonition from U.S. v. Mandujano: “Because false declarations affect the integrity of the factfinding process, the Attorney General’s Council on White Collar Crime recommends that offenders be vigorously prosecuted. ‘Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings.’” Perhaps Ebyam will soon face the government’s wrath once more for lying under oath? Maybe more guidance on soliciting perjurious testimony can be found in the feds’ secret “Blue Book” that was created after the disgraceful prosecution of the late Senator Ted Stevens.

The government may claim that this repeated misconduct was not “intentional,” and that this rarely happens. Fair enough, but let them face the music by being named and reported so that the prosecutors may spend the coin, time, and aggravation to defend themselves and “clear their name.” After they’re vindicated, they can go to the nearest office to get their reputation back like everyone else.

Years ago, a young naïve up-and-coming defense lawyer was inside an anthill of snitches Miami’s Federal Detention Center waiting to see a client. While waiting and talking to a more experienced trench warrior, the young lad expressed surprise as to how the government was playing a bit dirty with a client who had had the temerity to fight back. The older lawyer then laughed and replied: “You don’t understand.  They rarely lose, and when they do, they’ll take the ball so no one can play anymore.” Touché, although the word “take” might as well be replaced with “hide.”