Case5:08-cr-00938-JW Document217 Filed05/04/11 Page1 of 17

1 J. TONY SERRA, SBN 32639

Pier 5 Law Group
2 506 Broadway
San Francisco, CA 94133
3 Telephone: (415) 986-5591
Facsimile: (415) 421-1331
4
Attorney for Defendant
5 JAMIE HARMON
6 UNITED STATES DISTRICT COURT
7 NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
8

9 )
UNITED STATES OF AMERICA, ) No. CR 08 00938 JW/PVT
10
Plaintiff )
11 ) SUPPLEMENTAL BRIEF
)
12 v. )
13 JAMIE HARMON et al., )
)
14 Defendants, )
)
15

16
In response to particular questions posed by this Court during hearings on the
17
motions currently pending under Rules 29 and 33 of the Federal Rules of Criminal
18

19 Procedure, the Defendant offers this supplemental brief.

20

21
ISSUES PRESENTED
22

23 I. THE COURT’S DECISION IN A MOTION FOR NEW TRIAL ON THE ISSUE

OF JUROR MISCONDUCT DURING VOIR DIRE IS REVIEWED ON AN
24
ABUSE OF DISCRETION STANDARD, AND IS NOT SUBJECT TO A FIXED
25 BURDEN OF PROOF.

26 During hearings in this matter, the Court asked counsel to set forth the legal standard
27
by which the court must weigh the evidence in its decision to grant a new trial on the issue
28
1
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page2 of 17

of juror misconduct. The specific request was “…for an articulation of where that standard
1

2 is. Is it beyond a reasonable doubt? Is it by a preponderance of the evidence? Is it

3 certainty?”1 Transcript (TX) 53:18-21.
4
The Ninth Circuit found that “little authority governs the situation presented here,
5
where a statutorily disqualified juror slipped through the juror selection process and sat on a
6

7 jury that rendered a verdict.” Coughlin v. Tailhook Ass’n, 112 F.3d 1052, 1058 (9th Cir.

8 1997). It is clear, however that “[t]he participation of a felon-juror is not an automatic basis
9
for a new trial.” Id., at 1059.
10

11 A. The decision to grant a new trial lies firmly within the discretion of the
Court and is therefore not subject to a fixed burden of proof.
12

13 A comprehensive review of case law yields the conclusion that the Court is at liberty

14 to grant a new trial on this issue, unrestrained by any established burden of proof. A
15
reviewing court must consider such a decision on an abuse-of-discretion standard. Sheet
16
Metal Workers’ Int’l Ass’n Local Union No. 359 v. Madison Indus., Inc., 84 F.3d 1186,
17

18 1192 (9th Cir. 1996).

19 Thus, the trial court’s finding will be reversed only if it “…reaches a result that is
20
illogical, implausible, or without support in the inferences that may be drawn from the
21
record.” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010). Abuse of discretion may also
22

23 be found when the trial court bases its decision “on an erroneous view of the law or a

24 clearly erroneous assessment of the facts.” United States v. Rahm, 993 F.2d 1405, 1410 (9th
25
Cir. 1993). “The abuse-of-discretion standard includes review to determine that the
26

27 1
Citation is to the single volume transcript (TX) of the evidentiary hearing conducted on April 1, 2011 unless
otherwise noted.
28
2
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page3 of 17

discretion was not guided by erroneous legal conclusions.” Koon v. United States, 518 U.S.
1

2 81, 100 (1996). The United States “carries a significant burden to show” that a District
3 Court has abused its discretion. United States v. Steel, 759 F.2d 706, 713 (9th Cir. 1985).
4
B. Making a finding of bias on the part of a juror who incorrectly answers
5
questions during voir dire.
6
Because Federal Rule of Evidence Rule 606(b), 28 U.S.C.A., prohibits consideration
7

8 of the jurors’ deliberations, the court is wholly barred from considering the ensuing effects

9 of a dishonest juror in that process. The elements necessary to establish actual bias must be
10
drawn from the record of voir dire, submitted documentary evidence and evidence adduced
11
at an evidentiary hearing.
12

13 The United States Supreme Court has held that in order to obtain a new trial a party

14 must first demonstrate that a juror failed to answer a material question on voir dire honestly,
15
and that a truthful reply would have provided a valid basis to challenge the juror for cause.
16
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984).
17

18 The Ninth Circuit clarified this standard in United States v. Edmond, 43 F.3d 472

19 (9th Cir. 1994) holding that a juror’s forgetfulness will not suffice to merit a new trial, since
20
it does not involve dishonesty. The court must decide if incorrect answers expose some
21
actual deceit or are given in error. Id., at 1061. If a juror is simply mistaken, no bias will
22

23 be found with respect to the incorrect answers and no new trial will be granted. Id.

24 If, however, the Court determines that a juror’s answers are dishonest and not merely
25
forgetful, the Court must then consider whether the juror’s deception was “limited to
26
collateral matters that had no impact on his ability to serve as a juror in this proceeding.”
27

28
3
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page4 of 17

Ibid, at 1062. If the court concludes that the juror’s misleading answers relate to material
1

2 issues regarding his service, the Court may find actual bias and grant a new trial.
3
C. ACTUAL BIAS--Analysis of the current evidence in light of the McDonough
4 Power Equip. standard.
5
In rendering its decision, the Court may rely upon the evidence received at the
6
hearing involving Juror Porter. Mr. Porter was given the choice to have counsel present
7

8 with him at the hearing, and declined that offer. TX 4:10-25; 5:1-15.

9 Juror Porter was placed under oath before testifying. TX 5:22-23. When asked
10
whether he recalled his arrest, conviction and probationary sentence during the 1980s, (TX
11
13:18-25) one of three responses was warranted: “Yes,” “I don’t remember” and “No.”
12

13 Mr. Porter might have said “Yes, I remember that.” Per McDonough, such a

14 response given during voir dire would have resulted in Porter’s dismissal from the venire.
15
Likewise, Mr. Porter could have said “No, I do not remember that,” however untenable or
16
unlikely such a response might seem. However, when questioned by the defense, Mr.
17

18 Porter chose the least plausible and most troubling option, and denied the event wholesale.

19 When asked if he had been convicted of possession of a deadly weapon, Mr. Porter replied
20
“No.” TX 14:1.
21
He persisted in his denial throughout questioning by the defense, stating: “No, I was
22

23 not convicted of any type of weapon charge that I remember.” TX 16:7-8. Even when

24 confronted by counsel with the court record of his conviction, he claimed he could not
25
remember it. TX 17:21-25; TX 18:1.
26

27

28
4
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page5 of 17

Mr. Porter did admit that he “might” have a conviction for passing of bad checks but
1

2 could not remember whether it was one or two incidents. TX 14:2-7.

3 His answers reflect a fundamental departure from the truth which cannot be
4
reconciled with an innocent failure of memory. Mr. Porter was not asked to recall minutiae,
5
like what he might have eaten for breakfast on a certain day in 1982, or what gifts he
6

7 received for his birthday in 1983. Instead, he was pointedly questioned about an incident in

8 which he evaded police and was found to be in possession of a deadly weapon. The
9
questions put to him related to nothing less than the first time in his life he was arrested and
10
jailed, and the decision to plead guilty to criminal charges and accept a probationary
11

12 sentence; a disturbing, significant event for anyone.

13 Denying that the events took place is beyond forgetfulness: it is manifestly

14
dishonest. However, it is reasonable to construe Mr. Porter’s answers to be dishonest even
15
if he claimed not to remember. This scenario eventually presented itself during the hearing.
16

17 After the juror repeatedly denied his conviction in the deadly weapons incident while being

18 questioned by the defense, the Court, obviously concerned with his denial in the face of the
19
record, interceded. The Court questioned Mr. Porter at the conclusion of his testimony:
20
THE COURT: Possession of a deadly weapon is one of those things that the
21
court would be concerned that you—with your answer about not recalling
22 that. Is there something about those circumstances that explains why
something like that would escape your memory?
23

24
JUROR PORTER: As I sit here your Honor, I can say I can remember the
year I got out of the service, I was pulled over for reckless driving. They
25 thought I was drunk. And there was a baseball bat in the car and they tried to
make it a weapons charge but it was thrown out of court.
26

27 THE COURT: I see. (TX 32:8-17.)

28
5
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page6 of 17

The Court’s inquiry seemed to spark concerns for Mr. Porter that defense
1

2 questioning had not. During defense questioning, he was confident, contentious, and even
3 contemptuous. When confronted by the Court’s concerns about his credibility, however, he
4
swiftly realized that brazening it out may have been the wrong strategy, and he equivocated.
5
Suddenly, the incident that had not happened began to come back to him. Mr. Porter’s
6

7 display under oath manifests at best, a lack of regard for the gravity of the proceedings, and

8 at worst, a disposition to boldly prevaricate.

9
There is also the issue of Mr. Porter’s felony conviction for welfare fraud, a crime of
10
moral turpitude2 about which the juror was also either mistaken or dishonest. He indicated
11

12 during voir dire that he had been convicted of welfare fraud roughly twenty-five years

13 before, but that his civil rights had been restored. TX 28:9-16. At the evidentiary hearing,
14
he acknowledged that he thought the Court would ask further questions regarding the
15
offense during the jury selection process. TX 29:12-14.
16

17 In truth, Mr. Porter suffered the felony conviction fourteen years before he appeared

18 on the venire in this case. His civil rights were never restored. And, as he admitted twice,
19
he continues to pay restitution in the matter. TX 24:18-19. By his sworn testimony, he
20
acknowledged that that he still owes money to the victim, but was inaccurate by nearly a
21

22 decade concerning the date of his offense.

23 Moreover, the juror is manifestly aware that his conviction was and remains a
24
felony. Specifically, he testified as follows:
25

26

27 2
See e.g. People v. Chavez, 84 Cal. App. 4th 25, 28, (2000), crimes of moral turpitude “include those in which
dishonesty is an element (i.e., fraud, perjury, etc.)”
28
6
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page7 of 17

“And as I understand it, once I pay back the restitution to the State
1
of California for the welfare fraud, the felony will be reduced to a
2 misdemeanor.” (TX 26:6-9.)
3 Mr. Porter is keenly aware that he is a convicted felon, and that his conviction has
4
not been reduced to a misdemeanor since he has not repaid the money obtained by fraud.
5
Mr. Porter also rejected the assertion, court records notwithstanding, that he had
6

7 unsuccessfully sought to have the welfare fraud conviction cleared. Also, despite the fact

8 that the record indicates that Mr. Porter has never attempted to have his felony conviction
9
reduced to a misdemeanor by means of a motion brought under California law, he insisted
10
during the evidentiary hearing that he had done so. TX 21:13-25. This testimony reflects
11

12 yet another layer of inconsistency in his voir dire statements.

13 While Mr. Porter may have used this area to further dissemble, his answers bear little
14
relation to the ultimate question. The salient inquiry was whether he had been convicted of
15
any offense for which he could have been subjected to more than a year of incarceration.
16

17 TX 19:5-9. Neither clearing his record pursuant to California Penal Code § 1203.4 or

18 reducing his felony to a misdemeanor pursuant to California Penal Code § 17 have any
19
bearing on his answers during voir dire and on the juror questionnaires.
20
Also, there is no evidence to suggest that Mr. Porter ever sought an offense reduction
21

22 in the welfare fraud case; a request which the state court is not obligated to grant and

23 arguably would be unlikely to grant in light of the number of offenses on the juror’s record,
24
and his ongoing failure to pay restitution.
25
Finally, even though the grant of an application to clear a criminal conviction under
26

27 Penal Code § 1203.4 does not completely restore all rights, (See e.g. Ramirez-Altamirano v.

28
7
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page8 of 17

Holder, 563 F.3d 800, 809-10 (9th Cir. 2009) the issue is moot because the application filed
1

2 by juror Porter was denied. Had the juror successfully completed probation, the state court
3 would have been without discretion to deny his application. People v. Chandler, 203 Cal.
4
App. 3d 782, 788 (1988). The fact that his application was denied is irrefutable proof that
5
he did not successfully complete probation.
6

7 The juror therefore did not file the motion he claims he did and the one he denied

8 filing, which would not have rehabilitated his fitness to serve as a juror in any event, was
9
not granted due to his failure to complete probation successfully.
10
Mr. Porter’s testimony at the evidentiary hearing calls his credibility into serious
11

12 question.

13
D. IMPLIED BIAS--Analysis of the current evidence in light of the Dyer
14 standard.
15
In the absence of a finding of actual bias on the part of the juror within the meaning
16
of McDonough Power Equip., the Court may still find implied bias and grant a new trial on
17

18 that basis.

19 The Ninth Circuit has found implied bias in those “extreme” situations “where the
20
relationship between a prospective juror and some aspect of the litigation is such that it is
21
highly unlikely that the average person could remain impartial in his deliberations under the
22

23 circumstances.” United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000), quoting

24 Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990).

25
This is not the only way to reach a finding of implied bias. The Court may imply bias
26
on the part of a juror who has been repeatedly dishonest during voir dire. Dyer v. Calderon,
27

28
8
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page9 of 17

151 F.3d 970, 981 (9th Cir. 1998). The standard is “essentially an objective one”
1

2 (Gonzalez, 214 F.3d at 1113), under which a juror may be presumed biased even though the
3 juror states, or even believes that he can be impartial. Dyer, 151 F.3d at 982. As the Ninth
4
Circuit wrote in Dyer, 151 F.3d at 983:
5
“If a juror treats with contempt the court’s admonition to answer voir
6
dire questions truthfully, [he] can be expected to treat [his] responsibilities as
7 a juror—to listen to the evidence, not to consider extrinsic facts, to follow the
judge’s instructions—with equal scorn. Moreover, a juror who tells major lies
8 creates a serious conundrum for the fact-finding process. How can someone
9 who [him]self does not comply with the duty to tell the truth stand in
judgment of other people’s veracity? Having committed perjury, [he] may
10 believe that the witnesses also feel no obligation to tell the truth and decide
the case based on [his] prejudices rather than the testimony.”
11

12 In this case the foreperson of the jury disregarded not only the original admonition

13 during voir dire, but was similarly evasive and dishonest during the evidentiary hearing.
14
The motivations behind dishonesty are irrelevant.
15
“The individual who lies in order to improve his chances of serving has
16
too much of a stake in the matter to be considered indifferent. Whether the
17 desire to serve is motivated by an overactive sense of civic duty, by a desire to
avenge past wrongs, by the hope of writing a memoir or by some other
18 unknown motive, this excess of zeal introduces the kind of unpredictable
19
factor into the jury room that the doctrine of implied bias is meant to keep
out.” Dyer, 151 F.3d at 982.
20
The Court need not speculate about the motivation for Mr. Porter’s repeated acts of
21

22 dishonesty. It is enough that deceptive statements were made during voir dire and in the

23 course of the evidentiary hearing.

24
Whether evaluated under the McDonough standard for bias, or under the Dyer
25
standard, the defense has met her burden.
26

27

28
9
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page10 of 17

In Dyer, the Ninth Circuit also addressed the government argument that a dishonest
1

2 juror does not provide sufficient cause for a new trial when weighed against the expense
3 and time required to discard the verdict already rendered. The Ninth Circuit quoted United
4
States v. Colombo, 869 F.2d 149, 152 (2d Cir.1989), with approval:
5
“[C]ourts cannot administer justice in circumstances in which a juror
6
can commit a federal crime in order to serve as a juror in a criminal case and
7 do so with no fear of sanction so long as a conviction results. The
government’s brief exhibits no concern over the possible criminality of the
8 juror’s conduct and asks us to affirm without further inquiry.... [W]hether the
9 government chooses to prosecute such cases is not for us to decide. We need
not reduce its incentives to take such conduct seriously, however, by giving
10 the government cause to believe that overlooking juror misconduct will
preserve tainted convictions.”
11
Dyer, 151 F.3d at 984.
12
The same rule should govern the instant case. Certainly if the government harbored
13

14 genuine concerns about delay, prejudice and inconvenience, they could have brought the

15 indictment before four years and 350 days into a five-year statute of limitations. It should
16
be noted that the government must explain such delays as a matter of law according to
17
United States v. Mays, 549 F.2d 670, 680 (9th Cir. 1977). To date, not a shred of
18

19
information has been provided on this point.

20 Mr. Porter, who was chosen as the jury foreperson in this matter, has demonstrated a
21
propensity for untruthfulness. He is also ineligible for Federal jury service. His repetitive
22
dishonesty during the jury selection process was augmented by his testimony during the
23

24
evidentiary hearing.

25 Finally, it is worthy of note that Mr. Porter was the foreperson of the jury. His
26 leadership role in the decision-making process is another factor which cannot escape the
27
Court’s consideration. His absolute integrity in that role is inarguable. Consequently, there
28
10
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page11 of 17

is no means by which the jury who deliberated in this case can be cleansed of the taint of
1

2 his misconduct. His conduct dictates that a new trial should be ordered in this case, if
3 motions to dismiss are not granted on other grounds.
4

5 II. THE DEPOSIT AND WITHDRAWAL OF FUNDS FROM AN ATTORNEY-CLIENT

TRUST ACCOUNT DOES NOT SUFFICE TO PROVE THE ELEMENT OF A
6 TRANSACTION WHICH IS “DESIGNED” FOR PURPOSES OF “CONCEALMENT;”
7 THUS, THE MONEY-LAUNDERING STATUTE IS VAGUE AS APPLIED IN THIS
CASE.
8
After the evidentiary hearing into the conduct of the jury foreperson, the Court made
9

10 several comments on other pending motions. One such observation was that no motion to

11 dismiss had been brought for failure of proof of the charged offenses. In so noting, the
12
Court further remarked that “there’s no motion having to do with the, the vagueness of the
13
statute itself.” In fact, the defense has addressed the issue of vagueness in another motion,
14

15 and now takes the opportunity provided by the Court’s musings to expand its arguments.3

16 Since this case in post-conviction posture, there may exist a preference to consider
17
the vagueness issue within the simpler framework of the Government’s failure to prove the
18
elements of each charge. This direct approach avoids the complexities inherent in the
19

20 decision whether, as a matter of law, the Government could ever have proved the design

21 element in light of the defined, very specific transactions in this case. If, then, as a matter
22
of law, the transactions are found not to have been “designed to conceal,” then both areas
23
highlighted by the Court in its comments are resolved at once.
24

25

26

27
3
The issue is raised at § III in Defendant’s motion to dismiss under rules 29 and 33.
28
11
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page12 of 17

In the first instance, the Government has indeed failed to prove its case. If the Court
1

2 determines as a matter of law that the charged transactions were not “designed to conceal,”
3 the necessity of proof of this fact is removed. The issue is resolved by the law, and remains
4
the exclusive province of the court.
5
With respect to the Court’s second inquiry, if the transactions are deemed not to be
6

7 “designed to conceal,” the statute must be found to be void as applied, since no lawyer

8 could be on notice of the illegality of the specified conduct.

9
The Court noted that there is no pending facial attack for vagueness against
10
18 U.S.C. § 1956 brought by the defense. A statute may be challenged as either facially
11

12 vague or vague as applied to the defendant. Schwartzmiller v. Gardner, 752 F.2d 1341,

13 1346 (9th Cir. 1984). A statute is unconstitutionally vague on its face if it “fails to provide
14
a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that
15
it authorizes or encourages seriously discriminatory enforcement.” United States v.
16

17 Williams, 553 U.S. 285, 304 (2008). The “as-applied” challenge leveled in this case is

18 consonant with Ninth Circuit precedent which holds that the statute is sound on its face. See
19
United States v. Estacio, 64 F.3d 477, 480 (9th Cir. 1995) citing United States v. Ortiz, 738
20
F. Supp. 1394, 1400 (S.D. Fla. 1990).
21

22 A statute is unconstitutionally vague as applied if it fails to put a defendant on notice

23 that her conduct was criminal. United States v. Purdy, 264 F.3d 809, 811 (9th Cir. 2001).
24
In this case, it is the government’s determination that the charged transactions are
25
illegal which gives rise to an unconstitutional ambiguity. No attorney, including the
26

27 defendant, can be on notice that such conduct is unlawful. This point was aptly

28
12
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page13 of 17

demonstrated when the Government’s own witness, David MacPherson, also an attorney,
1

2 testified that he sued Ms. Harmon civilly to recover the questioned funds from her trust
3 account. MacPherson’s attempt to acquire the funds himself establishes a palpable (if
4
ironic, given his important role in the Government’s case-in-chief) absence of notice that
5
transactions involving those funds constitute a crime.
6

7 Simply put, there is no frame of reference for criminal defense attorneys: by the

8 government’s reasoning, each time a lawyer accepts funds from a criminal defendant, she
9
may be risking criminal prosecution, depending on whether or not the prosecution chooses
10
to believe the attorney knew the funds came from an illicit source
11

12 A. Transactions designed by the State Bar of California to ensure the discrete

13 identity of client funds and imposed on the Defendant as a professional
obligation, cannot be said to have been designed by the Defendant to conceal
14 anything.
15

16 This Court has repeatedly asked the Government to explicate the conduct which
17
triggers prosecution under its unique construction of 18 U.S.C. § 1956. The Government’s
18
response has ranged from awkward silence, to the strange assertion that hiding money
19

20
“under a rock” might trigger prosecution, to the dangerous and perhaps unconstitutional

21 claim at the core of its case, that depositing funds in an account and then writing a check
22
against those funds is chargeable as money-laundering at their discretion.
23

24

25

26

27

28
13
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page14 of 17

Assuming there is more to the Government’s characterization of money laundering

1

2 than “It is when we say it is,”4 its responses to the Court manifest seemingly undeniable
3 certainty that both the elements of “knowing” and “designed to conceal” are purely factual
4
determinations for a jury. Therefore, as suggested by the Government in this case, hiding
5
money under a rock would, in fact, be money-laundering if the defendant “designed” a
6

7 transaction with that purpose in mind and then, “knowing” she was doing so, hid the money

8 under the rock and “concealed” it.

9
As a matter of law, however, physically concealing money does not constitute
10
money-laundering no matter how well-hidden such funds might be. See e.g. Regalado
11

12 Cuellar v. United States, 553 U.S. 550, 552 (2008) [discussing transportation intended to

13 conceal the source of unlawful funds]. So the Government approach, as perplexingly as it

14
has been set forth, seeks an incorrect result: it asks jurors to decide a mixed question of law
15
they are ill-equipped to consider and one they are ultimately not permitted to reach.
16

17 A careful reading of subdivision (a)(1)(B) of the statute is essential. This subdivision

18 criminalizes the conduct of a person who “knowing that the transaction is designed in whole
19
or in part” to achieve any of the subsequently-enumerated goals, (i.e.--concealment of the
20
source of funds) then completes the transaction. Of these two elements, knowledge is a
21

22 question of fact for jurors.5 However, the defense submits that both the elements of design

23

24
4
25 It is a rule of long-standing that interpreting a statute in a way that “vests virtually complete discretion” in
law enforcement when deciding whether or not conduct is unlawful is void. Kolender v. Lawson, 461 U.S. 352, 358
26 (1983).
5
Juror statements to the press after trial recast this element as “should have known” which indicates that jurors
27 were mistaken as to the scienter element and with their verdict answered a question not presented to them. Howard
Mintz, San Jose defense attorney convicted on five money-laundering counts, S. J. Mercury News, July 20, 2010.
28
14
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page15 of 17

and concealment represent mixed questions of law and fact, and the legal conclusions
1

2 required can only be drawn by the Court.

3 The defense respectfully submits that these aspects of the case should not have been
4
presented to jurors to decide without clarification of the legal issues. It is those legal
5
questions which give rise to the vagueness challenge. Phrased differently, a jury should not
6

7 be placed in the position of deciding whether an act is unlawful; rather its duty must be

8 limited to deciding whether the disputed fact occurred.

9
The defense submits that to sustain a charge of money-laundering, more must be
10
shown than the simple deposit and withdrawal of funds in reportable amounts from an
11

12 attorney trust account.

13 As the Court noted during the hearing on this matter, these accounts, subject as they
14
are to random audits and record production at the request of the State Bar, are designed lay
15
bare every transaction. They are calculated to create absolute transparency when a client’s
16

17 funds are within the control of an attorney. And here, far from obscuring the source of the

18 funds, the questioned transactions mapped yet another route by which the funds might be
19
traced.
20
Moreover, the “design” of the questioned transactions cannot be attributed to Ms.
21

22 Harmon. The State Bar of California and the American Bar Association model rules

23 require that funds held in trust be disbursed “promptly” and “as requested by the client.”
24

25

26

27

28
15
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page16 of 17

Cal. Rules of Professional Conduct, Rule 4-100(B)(4); ABA Model Rules of Professional
1

2 Conduct, Rule 1.15.6

3 Also fatal to the claim that the transactions were “designed” to conceal was the trial
4
testimony that each disbursement to the client was in excess of $10,000. That figure is
5
talismanic, since a transaction of this amount or more mandates that it be reported by the
6

7 financial institution under 31 U.S.C.A. § 5313. Thus, each transaction at issue here

8 generated a separate record produced explicitly for the Federal government. It is fallacious
9
to assert that the transactions in this case are “designed” to “conceal” when by law each one
10
triggers multiple layers of mandatory governmental scrutiny.
11

12 The interpretation of 18 U.S.C. § 1956 as applied to the Defendant is

13 unconstitutionally vague, since it fails to give notice that the conduct may be deemed
14
criminal. It is the construction of the statute as wrought by the government in its contrived
15
definitions of “design” and “conceal” which has rendered it so. It cannot be said that the
16

17 plain language of the statute is the culprit.

18 This Court has repeatedly asked prosecutors to explain how attorneys are to respond
19
upon learning that funds they hold in trust might be proceeds from a specified unlawful
20
activity. No answer has been forthcoming. Thus, the lingering question remains: how do
21

22 defense attorneys avoid becoming prosecution targets? Until the government can point the

23 Court to notice that the Defendant was given under Purdy, 264 F.3d at 811, the application
24
of § 1956 here and in similar cases is unconstitutionally vague.
25

26

27 6
The government has long maintained in this case that only the withdrawals, and not the deposits, were the
subject of prosecution.
28
16
 Case5:08-cr-00938-JW Document217 Filed05/04/11 Page17 of 17

Perhaps this explains why the government focused the bulk of its case on trying to
1

2 show that the Defendant knew that the funds were from an unlawful source, rather than
3 showing that what she did (keep her legal fees and return the remainder “promptly” and “as
4
requested,”) is unlawful.
5
Knowingly engaging in a lawful activity should not require an explanation in
6

7 criminal court. Scienter is a proper issue for a jury’s consideration, but only when the

8 conduct at issue is a crime.

9
Dated: May 3, 2011 Respectfully submitted,
10

11

12 _____________________
J. TONY SERRA,
13 Attorney for Jamie Harmon
14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
17