Friday, August 19, 2016
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Ninth Circuit Upholds Bay Area Lawyer’s Conviction for Money Laundering
By a MetNews Staff Writer
A prosecutor’s alleged failure to correct a grand jury witness’s false testimony does not entitle a now-disbarred San Jose lawyer to a new trial on money laundering charges, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel affirmed the convictions of Jamie Harmon, also known as Jamie Harley, on five counts of money laundering. Harmon, who was sentenced to two years in prison, had a conspiracy count dismissed after jurors deadlocked.
“The parties agree that the prosecutor’s actions before the grand jury…were wrong,” Judge John Owens wrote for the court. “But errors concerning evidence presented to the grand jury cannot trigger dismissal of charges or a new trial when a subsequent petit jury returns a verdict of guilty… We hold that where the intentional misconduct by the prosecution goes to a witness’s credibility, it is not structural error. While we share concerns that our holding could encourage prosecutorial misconduct…something other than dismissal—such as a state bar inquiry or an investigation by the Office of Professional Responsibility—is the proper recourse under these facts.”
Harmon, 59, was convicted in July 2010, following a three-week trial. Prosecutors said the defendant, a onetime deputy district attorney who became a defense lawyer, accepted two checks made payable to Silicon Valley Resale a San Jose company that sold used computer equipment.
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—AP Attorney Jamie Harley (then known as Jamie Harmon) in 2006. |
The company had been previously owned and operated by her former client, Christian Pantages, and another individual, known as “Yan Ebyam.” Owens explained in a footnote that the name is a play on “Yes and No. Maybe.”
Pantages testified that he told Harmon from the first time that he met with her that the company was selling stolen computer hardware, and that the two checks that Harmon accepted were the proceeds from those sales.
Following the trial before U.S. District Judge James Ware, since retired, the defense moved for a new trial. It claimed the prosecutor should have corrected Ebyam, who was cooperating with the government after his own guilty plea in the case, when he told the grand jury that he was testifying voluntarily after serving his own sentence in the case, and that he was testifying voluntarily in order “to be a member of society again.”
In fact, the plea agreement included a statute-of-limitations waiver and left open the possibility of additional charges if he stopped cooperating. He was also working as a confidential informant in unrelated cases.
Ebyam’s testimony, and that of the lead investigator and a civil attorney who had suspicious dealings with Harmon, led to Harmon and Pantages being indicted. Pantages pled guilty and testified at Harmon’s trial.
Ware, who denied the defense’s pretrial motion to dismiss the indictment based on the non-disclosure of Ebyam’s lack of candor before the grand jury, rejected the argument again after trial, but sua sponte granted a new trial based on error in instructing the jury. The Ninth Circuit, however, reversed, saying the error was harmless, and sent the case back to the district court.
Judge Lucy Koh, who received the case after Ware retired, denied a renewed motion for new trial. In addition to the prison term, she ordered Harmon to serve three years on supervised release and perform 200 hours of community service.
In concluding that the prosecutor’s misconduct did not compel reversal, Owens cited United States v. Mechanik (1986) 475 U.S. 66, which held that the presence of two government witnesses before the grand jury simultaneously, although in violation of a rule, was rendered harmless once the trial jury returned its verdict.
Owens, joined by Senior Judges J. Clifford Wallace and Dorothy Nelson, rejected the argument that the cases are distinguishable because the false testimony rendered the proceedings fundamentally unfair, saying it was unsupported by any case authority.
The case is United States v. Harmon, 15-10034.
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