Monday, November 24, 2014
Panel Appears Skeptical of Convicted Lawyer’s Appeal
By a MetNews Staff Writer
A Ninth U.S. Circuit Court of Appeals panel Friday appeared skeptical of a lawyer’s claim that his conviction should be set aside because he was under the influence of psychotropic drugs when he waived his right to trial by jury.
The defendant, David Tamman, was a sophisticated, well-educated attorney, who does not claim to have been mentally incompetent and was advised by his own attorney, who concurred in the waiver, Judge William Fletcher noted.
“I just don’t get it,” Fletcher said, referring to the argument that the trial judge should not have accepted the waiver without asking further questions about drug use.
But Harvard Professor Alan Dershowitz, who recently joined Tamman’s legal team, insisted that once Tamman told District Judge Philip Gutierrez of the Central District of California that he was using medications and did not know whether he was under the influence of them, the judge should have asked specific questions about what drugs those were and what dosages he was taking. The drugs, he said, including large dosages of Prozac, Wellbutrin, and other medications.
Gutierrez tried Tamman without a jury two years ago and found him guilty of one count of conspiring to obstruct justice, five counts of altering documents, one count of being an accessory after the fact to his client’s mail and securities fraud crimes, and three counts of aiding and abetting the client’s false testimony before the SEC.
The client, John Farahi, had earlier pled guilty to running a Ponzi scheme, selling unregistered securities, bank fraud, and conspiring with Tamman to obstruct justice.
Prosecutors said that when the SEC made a surprise inspection of Farahi’s business, Tamman began altering and backdating documents to create the illusion that Farahi had been disclosing to investors that Farahi was himself taking the majority of investors’ funds. They also said that Tamman created and backdated promissory notes.
Tamman, a partner at Nixon Peabody LLP from 2007 to 2009, was sentenced to seven years in prison and is currently under interim suspension from the State Bar. He is also embroiled in litigation with his former firm, saying he lost a huge portion of his clientele when the firm terminated him after the SEC started serving subpoenas as part of the Farahi investigation, and that Nixon Peabody acted out of greed, wanting his book of business.
During Friday’s argument, the other panelists appeared to agree with Fletcher that the waiver argument was weak. Judge Jay Bybee said the district judge had the opportunity to observe the defendant’s demeanor when the waiver was offered, and Senior District Judge David Ezra, sitting by designation, said the defense counsel was in the best position to raise the issue if the defendant’s judgment was impaired.
Dershowitz said the defendant’s demeanor would not have alerted the judge to the fact that he was taking “an enormous amount of drugs” and that the Ninth Circuit has held in other cases that a judge has a duty to conduct a more searching inquiry if he is on notice of a possible impairment on the part of a defendant seeking to waive trial by jury.
But Assistant U.S. Attorney Paul Stern argued for the government that the defense was seeking to stretch the defendant’s ambiguous statements about the impact of the medications into a meritless argument for reversal of a legitimate conviction supported by strong evidence of corrupt activity.
Fletcher agreed, saying “if the medication is efficacious, you are not necessarily under the influence of the medication.”
The attorneys also sparred over the length of the sentence, with Dershowitz arguing that Tamman should not have received both an enhancement based on Farahi having been a broker-dealer, which extended to the defendant as Farahi’s accessory, and a second enhancement based on having used “special skills” as an attorney to commit securities crimes.
Fletcher questioned the latter enhancement, noting that Tamman “wasn’t very skillful,” since he was caught.
But Stern told the panel:
“I don’t think just because people get caught, it means that they weren’t skillful.”
Tamman’s alterations and backdating of documents to make it appear that required disclosures had been made showed he was “a pretty artful lawyer,” the prosecutor said.
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