Monday, July 20, 2020

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Ninth Circuit:

Jury Instruction Didn’t Cure Brady Violation

By a MetNews Staff Writer

The Ninth Circuit Court of Appeals held Friday, over a dissent, that the prosecution’s Brady violation requires reversal of the mortgage fraud convictions of two Orange County men who were ordered to pay more than $7 million in restitution.

Circuit Judge John B. Owens, writing for the majority, credited District Court Judge Andrew J. Guilford of the Central District Court of California with having made a “noble effort” to remedy the prosecution’s failure to disclose potentially exculpatory evidence, as required by the U.S. Supreme Court’s 1963 opinion in Brady v. Maryland. It had neglected, through inadvertence, to disclose impeachment evidence concerning a witness, Halime “Holly” Saad, until after the close of evidence.

Guilford, who presided over the trial of Maher Obagi and Mohamed Salah, told jurors to disregard that witness’s testimony.

Came Too Late

“But in this case, it was too late—the genie was out of the bottle,” Owens wrote.

Based on Saad’s testimony, jurors were told by the prosecutor in closing argument that they could trust the testimony of another government witness which Saad corroborated, the jurist explained. He noted that counsel for one of the defendants “had completed closing argument without the benefit of being able to attack Saad’s credibility.”

Owens said Guilford attempted to remedy “an impossible situation.” However, he declared, the jury instruction was not a sufficient cure.

“While the instruction informed the jury that the government had erred and that it should disregard Saad’s testimony and argument about her, it did not tell the jury that the government’s powerful closing was premised on a false narrative—Saad’s reliability,” Owens said.

Corroborating Witness

The prosecution had called on Saad to address major credibility problems with another witness, Jacqueline Burchell, who testified she was ordered to conceal kickback payments and overheard incriminating conversations between Obagi and Salah.

Prosecutors were unaware that Saad had received immunity in a separate mortgage fraud investigation in 2014. She was recognized in the courtroom by a federal prosecutor observing the trial.

The court and defense counsel learned about the prosecution’s oversight during the middle of closing statements.

Guilford told counsel:

“I think you’ve all made your record, and I think the Ninth Circuit should carefully look at that record and see if I’ve drawn the line in the right place.”

The jury returned guilty verdicts for both Obagi and Salah after deliberating for three days. Both moved for a new trial.

New-Trial Motion

Guilford denied the motion, finding no evidence of intentional misconduct or that defendants were deprived of a fair trial.

On appeal, the government maintained that failure to disclose Saad’s previous dealings was not material because her testimony was “duplicative of other testimony and evidence.” Owens disagreed, saying:

“Saad’s testimony mattered not only because she directly incriminated Obagi, but because she corroborated testimony from the government’s cooperating witnesses. Indeed, the government’s closing mentioned Saad by name six times because her corroboration was so important.”

District Court Judge Donald W. Molloy of the District of Montana, sitting by designation, joined in Owens’s opinion.

Dissenting Opinion

Judge Patrick J. Bumatay disagreed with Owens. He said Guilford’s jury instruction was sufficient to cure the prosecution’s inadvertent error.

Against other “extensive evidence against the defendants,” Bumatay wrote, “it’s hard to see how Saad’s testimony makes or breaks the government’s case.”

The case is U.S. v. Obagi, 18-50170.