Case5:08-cr-00938-JW Document217 Jamie Leigh Harley Criminal File US District Court

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

UNITED STATES OF AMERICA,

PLAINTIFF,

VS.

JAIME HARMON,

DEFENDANT.

))))))))))

CR-08-00938 JW

SAN JOSE, CALIFORNIA

APRIL 1, 2011

PAGES 1-59

TRANSCRIPT OF PROCEEDINGSBEFORE THE HONORABLE JAMES WAREUNITED STATES DISTRICT JUDGE

A P P E A R A N C E S:

FOR THE PLAINTIFF: UNITED STATES ATTORNEY'S OFFICEBY: GRANT P. FONDO AND

AMBER S. ROSEN150 ALMADEN BOULEVARDSUITE 900SAN JOSE, CALIFORNIA 95113

FOR THE DEFENDANT: LAW OFFICES OF J. TONY SERRABY: J. TONY SERRA AND

SHARI WHITE506 BROADWAYSAN FRANCISCO, CALIFORNIA 94133

ALSO PRESENT: THEODORE STALCUP

OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRRCERTIFICATE NUMBER 9595

Case5:08-cr-00938-JW Document217-1 Filed05/04/11 Page1 of 59

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INDEX OF WITNESSES

MARK PORTEREXAMINATION BY MR. SERRA P. 10

INDEX OF EXHIBITS

MARKED ADMITTED

PLAINTIFF'S

1 36

DEFENDANT'S

E 17


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SAN JOSE, CALIFORNIA APRIL 1, 2011

P R O C E E D I N G S

(WHEREUPON, COURT CONVENED AND THE

FOLLOWING PROCEEDINGS WERE HELD:)

THE CLERK: CALLING CASE NUMBER 08-938,

UNITED STATES VERSUS JAIME HARMON, ON FOR

EVIDENTIARY HEARING.

MR. FONDO: GOOD MORNING, YOUR HONOR.

GRANT FONDO FOR THE UNITED STATES.

THE COURT: GOOD MORNING.

MR. SERRA: GOOD MORNING, YOUR HONOR.

IT'S TONY SERRA AND SHARI WHITE. WE'RE HERE ON

BEHALF OF MRS. HARMON. SHE IS PRESENT BEFORE THE

COURT.

THE COURT: GOOD MORNING.

MR. SERRA: GOOD MORNING.

THE COURT: THIS IS A PROCEEDING ON

POST-TRIAL PROCEEDINGS THAT ARE PENDING BEFORE THE

COURT, AND THE COURT WAS PERSUADED TO ALLOW THE

PARTIES TO CONDUCT AN EVIDENTIARY HEARING WITH

RESPECT TO ONE ASPECT OF THIS CASE, AND WE HAVE

TAKEN THE TASK OF SUMMONING MR. PORTER BEFORE THE

COURT FOR PURPOSES OF THIS.

MY INTENT IS TO SPEAK WITH HIM AND ASSURE

HIM OF THE NATURE OF THESE PROCEEDINGS, AND THEN TO


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PERHAPS HAVE SOME BASIC QUESTIONS FROM THE COURT,

AND THEN TO ALLOW THE PARTIES TO CONDUCT AN

EXAMINATION OF MR. PORTER WITH RESPECT TO THESE

MATTERS, PRESUMING THAT HE IS HERE.

MR. PORTER?

JUROR PORTER: YES.

THE COURT: PLEASE COME FORWARD, SIR.

THANK YOU VERY MUCH FOR RESPONDING TO THE

COURT'S ORDER THAT YOU APPEAR.

BEFORE I BEGIN, AMONG THE MESSAGES THAT I

HOPED YOU WOULD RECEIVE IS AN OFFER FROM THE COURT,

IF YOU WISH, TO SPEAK WITH AN ATTORNEY ABOUT THESE

PROCEEDINGS BECAUSE THEY DO -- THERE WILL BE

QUESTIONS RAISED ABOUT YOUR SERVICE AS A JUROR AND

YOUR BACKGROUND, AND THAT IF YOU WISH, THE COURT

WOULD APPOINT AN ATTORNEY TO REPRESENT YOU.

I WAS HOPING THAT THAT MESSAGE WOULD BE

RECEIVED WITH THE NOTION THAT THIS IS NOT A

PROCEEDING WHERE YOU ARE THE FOCUS FOR PURPOSES OF

THE COURT TAKING ANY ACTION AGAINST YOU, BUT I

WANTED YOU TO FEEL THAT YOU HAD THE OPPORTUNITY TO

SPEAK WITH SOMEONE ABOUT THESE MATTERS BEFORE YOU

WERE EXAMINED.

IT IS MY INTENT TO HAVE YOU PLACED UNDER

OATH AND TO ASK CERTAIN QUESTIONS THAT MIGHT BE PUT


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TO YOU BY THE COURT AND BY THE PARTIES, AND

SOMETIMES PEOPLE PUT IN THAT POSITION FEEL THAT

THEY WOULD WISH TO HAVE AN ATTORNEY TO REPRESENT

THEM AND THEIR INTERESTS, TO TALK TO ABOUT IT, AND

SO I WANTED TO ADVISE YOU OF THAT OPPORTUNITY THAT

YOU WOULD HAVE IF YOU WISHED TO PARTAKE OF IT.

AND I HADN'T HEARD THAT YOU WISHED TO

PARTAKE OF IT, BUT I WANTED TO GET YOUR STATEMENT

HERE ABOUT THAT.

IS THAT -- DID YOU UNDERSTAND THAT YOU

HAD THAT RIGHT?

JUROR PORTER: I DID UNDERSTAND THAT,

YOUR HONOR, BUT I'VE DONE NOTHING, SO LET'S DO

THIS.

THE COURT: ALL RIGHT. VERY WELL.

SO IT IS MY INTENT TO HAVE MS. GARCIA

GIVE YOU AN OATH AND THEN TO HAVE YOU TAKE THE

WITNESS STAND FOR PURPOSES OF THESE PROCEEDINGS.

THE CLERK: WOULD YOU PLEASE RAISE YOUR

RIGHT HAND.

MARK PORTER,

BEING CALLED AS A WITNESS, HAVING BEEN FIRST DULY

SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:

THE WITNESS: I DO.

THE CLERK: THANK YOU. PLEASE BE SEATED.


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PLEASE STATE YOUR FULL NAME AND SPELL

YOUR LAST NAME FOR THE RECORD.

JUROR PORTER: MARK ANTHONY PORTER,

P-O-R-T-E-R.

THE COURT: THANK YOU, MR. PORTER.

I JUST GAVE YOU A BRIEF ADMONITION PRIOR

TO YOUR BEING SWORN.

YOU'VE BEEN SUMMONED BEFORE THE COURT

HERE AS PART OF AN EVIDENTIARY HEARING TO INQUIRE

ABOUT YOUR BACKGROUND, VARIOUS FORMS THAT YOU

FILLED OUT IN CONNECTION WITH YOUR SERVICE AS A

JUROR IN THIS CASE, AND NOW YOU'VE TAKEN AN OATH BY

THE AD -- ADMINISTERED BY THE CLERK.

THE POINT OF IT IS TO BRING TO YOUR MIND

THAT YOU HAVE TO ANSWER ALL OF THE QUESTIONS THAT

ARE PUT TO YOU TRUTHFULLY.

DO YOU UNDERSTAND ALL OF THAT, SIR?

JUROR PORTER: YES, SIR, I DO.

THE COURT: VERY WELL. I ALSO ADVISED

YOU THAT YOU HAVE THE RIGHT TO SPEAK WITH AN

ATTORNEY, AND THAT IF YOU WISHED, THE COURT WOULD

APPOINT AN ATTORNEY TO REPRESENT YOU.

AND DO YOU WAIVE YOUR RIGHT TO HAVE THE

COURT APPOINT AN ATTORNEY TO REPRESENT YOU WITH

RESPECT TO THESE PROCEEDINGS?


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THE COURT: THANK YOU, SIR.

I SHOULD PREFACE ALL OF THIS WITH THE

CONTINUING GRATITUDE OF THE COURT FOR YOUR SERVICE

AS A JUROR IN THIS CASE. NOTHING THAT WE DO HERE

TODAY IS INTENDED TO TAKE AWAY FROM THAT.

BUT THERE ARE SOME ASPECTS THAT THE LAW

IMPOSES UPON JURY SERVICE THAT WE WANT TO MAKE

CERTAIN WERE OBSERVED WITH RESPECT TO YOUR SERVICE

AS A JUROR HERE, AND THAT'S THE POINT OF OUR

QUESTIONING IS TO UNDERSTAND THAT THERE MIGHT HAVE

BEEN SOME PROVISIONS THAT WERE CALLED INTO QUESTION

BY THE PAPERS THE COURT HAS RECEIVED.

IT COULD BE THAT SOME OF THE QUESTIONS

PUT TO YOU TODAY WOULD CALL INTO QUESTION YOUR

QUALIFICATIONS TO SERVE AS A JUROR.

YOU STARTED YOUR SERVICE BY FILLING OUT A

QUESTIONNAIRE THAT WAS SENT TO YOU BY OUR CLERK'S

OFFICE.

JUROR PORTER: I DON'T REMEMBER, BUT

OKAY, YES, SIR.

THE COURT: ALL RIGHT. IT DOESN'T

SURPRISE ME THAT YOU MIGHT NOT REMEMBER THAT.

AND THOSE ARE PAPERS THAT WOULD BE SENT

TO YOU, LIKE ALL JURORS, JUST TRYING TO GET A


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LITTLE BIT OF A STATEMENT ABOUT YOUR BACKGROUND AND

YOU WOULD SEND THOSE BACK IN, AND THEN AS CASES

WOULD COME UP, THE WAY IT NORMALLY WORKS IS YOU'RE

ON A TELEPHONE SYSTEM THAT YOU CALL IN AND ARE TOLD

WHETHER OR NOT YOUR SERVICES ARE REQUIRED ON A

PARTICULAR CASE.

DOES THAT SOUND FAMILIAR TO YOU AT ALL?

JUROR PORTER: SLIGHTLY.

THE COURT: ALL RIGHT. AND THEN AFTER

YOU COME TO THE COURTHOUSE, THERE'S A PROCESS BY

WHICH YOU ARE ASSEMBLED DOWNSTAIRS, THERE MIGHT

HAVE BEEN A BRIEF QUESTIONNAIRE THAT ASKED FURTHER

ABOUT YOUR BACKGROUND, AND THEN YOU'RE SUMMONED UP

TO THE COURTROOM, AND IN THIS CASE YOU WERE

SUMMONED TO THE COURT WHERE THE UNITED STATES

GOVERNMENT HAD A CLAIM AGAINST MS. JAIME HARMON.

DO YOU REMEMBER YOUR SERVICE AS A JUROR

IN THIS CASE?

JUROR PORTER: OH, YEAH. YES, SIR, I DO.

THE COURT: AND IN THE COURSE OF THAT,

YOU WERE ULTIMATELY PLACED IN THE JURY BOX AND

FURTHER QUESTIONS WERE PUT TO YOU BY THE COURT AND

BY THE PARTIES WITH RESPECT TO YOUR SERVICE AS A

JUROR.

DO YOU REMEMBER THAT PROCESS?


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THE COURT: ALL RIGHT. SO MOST OF OUR

QUESTIONS WILL BE GEARED TOWARD THAT PERIOD OF

TIME, YOUR FILLING OUT THE FORMS, COMING TO COURT,

AND YOUR BEING SWORN ULTIMATELY AS A JUROR IN THE

CASE.

I DO UNDERSTAND THAT THERE WERE SOME

OTHER STATEMENTS THAT YOU MADE AFTER THE TRIAL TO

THE PRESS.

DO YOU REMEMBER GIVING STATEMENTS TO THE

PRESS?

JUROR PORTER: YES.

THE COURT: ALL RIGHT. SO THAT MIGHT BE

A LEGITIMATE AREA OF INQUIRY AS WELL.

YOU CAME TO JURY SERVICE HAVING YOURSELF

HAD A BACKGROUND, ALL JURORS DO, AND PART OF THE

QUESTIONS THAT MIGHT BE PUT TO YOU HAVE TO DO WITH

YOUR BACKGROUND IN TERMS OF ANY OFFENSES THAT YOU

MIGHT HAVE BEEN CHARGED OR CONVICTED OF, AND THAT

WOULD BE A LEGITIMATE AREA OF INQUIRY, TOO.

LET ME FIRST CALL ON THE MOVING PARTY,

THE DEFENDANT HERE, TO ASK ANY QUESTIONS THAT YOU

WOULD HAVE OF MR. PORTER.

MR. SERRA: THANK YOU, YOUR HONOR.

YOUR HONOR, MAY WE PROJECT ONE OF THE


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EXHIBITS AND MAY I QUESTION HIM WHEN WE USE THE

PROJECTOR TO PROJECT IT?

THE COURT: SURE. NOW, THERE ARE TWO

WAYS TO DO IT. YOU CAN PUT A PAPER DOCUMENT ON THE

ELMO THERE AND IT WILL BE PROJECTED TO THE WITNESS

AND TO ALL OF US ON THESE SCREENS, OR IF YOU HAVE

IT IN A COMPUTER FORM, WE HAVEN'T SET THAT UP, BUT

WE COULD SET THAT UP.

MS. WHITE: WE'LL USE THE ELMO.

THE COURT: ALL RIGHT. VERY WELL.

AND THERE ARE WAYS TO ZOOM IN ON THAT

DOCUMENT SO THAT WE CAN SEE PORTIONS OF IT MORE

CLEARLY.

IS THAT COMING UP ON YOUR SCREEN, SIR?

JUROR PORTER: YES.

THE COURT: SO MS. GARCIA CAN SHOW YOU

HOW TO TURN ON THE RIGHTS ON THE SIDE OF IT AND

OTHER WAYS OF MANIPULATING THAT MACHINE SO WE GET A

CLEAR IMAGE.

(PAUSE IN PROCEEDINGS.)

EXAMINATION

BY MR. SERRA:

Q GOOD MORNING, MR. PORTER.

A GOOD MORNING.

Q CAN YOU SEE WELL ENOUGH ON THE SCREEN? IS IT


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CLEAR?

A NO, IT ISN'T.

THE COURT: YES. YOU MIGHT WANT TO ZOOM

IN ON VARIOUS PARTS OF IT. MOVE IT AROUND.

I FIND THAT SOMETIMES THESE HANDWRITTEN

DOCUMENTS DON'T SHOW UP VERY WELL.

AND IT ALSO MIGHT BE THAT YOU NEED -- YOU

CAN BRING THAT CAMERA DOWN RATHER THAN HAVE IT AT

ITS FULL EXTENSION. THERE'S A BUTTON ON THE SIDE

TO LOWER THE ARM.

MS. WHITE: OKAY.

THE COURT: THAT'S STARTING TO GET

BETTER.

BY MR. SERRA:

Q FIRSTLY, SIR, DO YOU RECOGNIZE YOUR NAME AT

THE TOP OF THIS EXHIBIT --

WHICH IS EXHIBIT D, YOUR HONOR, ATTACHED

TO THE MOVING PAPERS OF THE DEFENDANT.

DO YOU RECOGNIZE YOUR NAME AT THE TOP

LEFT, SIR?

A I DO.

Q AND DO YOU SEE YOUR SIGNATURE DOWN AT THE

LOWER RIGHT?

A MORE OR LESS, YES.

MR. SERRA: COULD THIS BE MOVED SO WE CAN


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SEE?

MS. WHITE: ONE MOMENT.

BY MR. SERRA:

Q THERE, I'VE MOVED IT. CAN YOU SEE IT NOW?

A YES.

Q IS THAT YOUR SIGNATURE?

A IT IS.

Q AND DO YOU SEE RIGHT ABOVE YOUR SIGNATURE, IT

SAYS "I DECLARE UNDER PENALTY OF PERJURY THAT ALL

THE ANSWERS ARE TRUE TO THE BEST OF MY KNOWLEDGE

AND BELIEF?"

DO YOU SEE THAT?

A I CAN'T READ THAT.

Q DO YOU SEE THAT ABOVE YOUR SIGNATURE?

A I CAN'T READ THAT.

Q I THINK WE OUGHT TO --

THE COURT: MAYBE GIVE A PAPER COPY TO

THE WITNESS.

MS. WHITE: MAY I APPROACH, YOUR HONOR?

THE COURT: CERTAINLY.

BY MR. SERRA:

Q ARE YOU ABLE NOW TO READ THE PORTION ABOVE

YOUR SIGNATURE THAT I ATTRACTED YOUR ATTENTION TO?

A YES.

Q RIGHT NOW GO TO -- I'M INTERESTED IN A FEW


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QUESTIONS ON ITEM 16 AND 17.

CAN YOU FIND, ON THE EXHIBIT, 16?

A YES.

Q LET ME READ IT. "ARE ANY CHARGES NOW PENDING

AGAINST YOU FOR A STATE OR FEDERAL CRIME PUNISHABLE

BY IMPRISONMENT FOR MORE THAN ONE YEAR?"

YOU ANSWERED NO.

FAIR?

A YES.

Q NOW LET'S GO TO 17. THIS IS -- THIS SPEAKS IN

THE PAST TENSE. "HAVE YOU BEEN CONVICTED OF A

STATE OR FEDERAL CRIME PUNISHABLE BY IMPRISONMENT

FOR MORE THAN ONE YEAR?"

DO YOU SEE THAT ONE?

A YES.

Q DO YOU SEE WHERE YOU SAID NO?

A YES.

Q NOW, ISN'T IT A FACT THAT YOU HAD BEEN

CONVICTED OF NUMEROUS OFFENSES THAT WERE PUNISHABLE

BY IMPRISONMENT FOR THAT MORE THAN ONE YEAR?

A NO.

Q LET ME CALL YOUR ATTENTION FIRST TO -- I'M

GOING TO GO YEAR BY YEAR, IF I MAY.

IN 1980, WEREN'T YOU CONVICTED OF

POSSESSION OF DEADLY WEAPON?


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A NO.

Q IN 1982, WEREN'T YOU CONVICTED OF BAD CHECKS?

A I THINK THERE WAS ONE CHECK, OKAY.

Q IN 1982, DIDN'T YOU SUFFER ANOTHER BAD CHECK,

TO WIT, 476 OF THE CALIFORNIA PENAL CODE,

CONVICTION?

A I DON'T REMEMBER.

Q ISN'T IT TRUE IN 1994 YOU WERE CONVICTED OF

WELFARE FRAUD?

A YES.

Q ISN'T IT TRUE THAT IN 1980, THE DEADLY WEAPON

CHARGE SUBJECTED YOU TO PUNISHMENT -- SUBJECTED --

I'M NOT SAYING YOU GOT IT -- BUT SUBJECTED YOU TO

PUNISHMENT OF MORE THAN ONE YEAR?

A NO.

Q ISN'T IT TRUE THAT THE TWO 1982 BAD CHECK

CONVICTIONS SUBJECTED YOU -- I'M NOT SAYING YOU GOT

IT -- BUT SUBJECTED YOU TO A SENTENCE OF MORE THAN

ONE YEAR?

THE COURT: WELL, I'M NOT SURE THAT YOUR

CLARIFICATION IS CLEAR TO THE COURT, BECAUSE TO BE

SUBJECTED TO SOMETHING MEANS THAT YOU ARE

ACTUALLY -- YOU ACTUALLY INCUR IT.

IT -- SO YOU MIGHT WANT TO CLARIFY

WHETHER YOU MEAN --


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BY MR. SERRA:

Q WELL, THAT YOU COULD HAVE BEEN PUNISHED, AS

THE FORM INQUIRES, BY IMPRISONMENT FOR MORE THAN

ONE YEAR?

A I'M SORRY.

MR. FONDO: SORRY. OBJECTION, YOUR

HONOR. MISSTATES THE EVIDENCE AS PART OF THE

QUESTION.

DEFENSE COUNSEL SAID THERE WERE TWO

CONVICTIONS FOR BAD CHECKS. I'M NOT SURE THAT'S IN

EVIDENCE. I'M NOT SURE THAT'S CORRECT.

THE COURT: I -- WHY DON'T YOU REPHRASE

YOUR QUESTION?

MR. SERRA: LET ME READ 17. IT SAYS,

"HAVE YOU BEEN CONVICTED OF A STATE OR FEDERAL

CRIME PUNISHABLE BY IMPRISONMENT FOR MORE THAN ONE

YEAR?"

HE ANSWERS NO.

I'M NOW ASKING, TAKING FROM HIS CRIMINAL

RECORD, WHETHER OR NOT, IN FACT, HE WAS -- ONE,

TWO, THREE, FOUR, AT LEAST FOUR CONVICTIONS WHERE

HE WAS PUNISHABLE BY IMPRISONMENT FOR MORE THAN ONE

YEAR.

THAT'S WHERE I WAS, YOUR HONOR, ASKING

HIM WHETHER HE --


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THE COURT: WHETHER HE UNDERSTOOD.

MR. SERRA: -- UNDERSTOOD THAT.

JUROR PORTER: SHOULD I ANSWER?

THE COURT: YOU MAY.

JUROR PORTER: AGAIN, I ONLY REMEMBER ONE

CHECK; AND, NO, I DON'T REMEMBER IT BEEN

PUNISHABLE; AND, NO, I WAS NOT CONVICTED OF ANY

TYPE OF WEAPON CHARGE THAT I REMEMBER.

MR. SERRA: YOUR HONOR, MAY I HAVE AN

EXHIBIT FURNISHED ME THIS MORNING BY PROSECUTION

MARKED AS DEFENSE NEXT IN ORDER?

THE COURT: WE CAN EITHER USE THE EXHIBIT

DESIGNATIONS THAT WERE IN THE MOTIONS, OR WE CAN

GIVE IT A NEW DESIGNATION.

MR. SERRA: THIS ONE WAS HANDED TO ME. I

DON'T THINK IT WAS PART OF THE PREVIOUS RESPONSES

BY THE GOVERNMENT.

THE COURT: VERY WELL. SO YOU SHOULD

SPECIFY A DESIGNATION THAT YOU WOULD WISH US TO

GIVE IT AND WE'LL ASSIGN THAT.

OTHERWISE THE CLERK CAN COME UP WITH ONE.

MR. SERRA: WELL, I'LL SAY, SINCE WE HAVE

OTHER EXHIBITS THAT I BELIEVE ENDED IN D, THAT THIS

WOULD BE DEFENSE E.

THE COURT: VERY WELL. WE CAN USE THE


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ALPHA DESIGNATION EXHIBIT E AS MARKED ON THAT

DOCUMENT FOR IDENTIFICATION.

(WHEREUPON, DEFENDANT'S EXHIBIT E WAS

MARKED FOR IDENTIFICATION.)

MR. SERRA: MAY I APPROACH THE WITNESS?

THIS SEEKS TO REFRESH RECOLLECTION ONLY, YOUR

HONOR.


BY MR. SERRA:

Q SIR, I'D LIKE YOU TO LOOK -- THIS IS A LISTING

OF VARIOUS PEOPLE AND THE CHARGES THAT WERE LODGED

AGAINST THEM, AND I'M HANDING YOU -- IT'S TWO

PAGES, BUT I'M NOW REFERRING TO THE FIRST PAGE.

I'D LIKE YOU JUST TO READ WHAT -- THE

YELLOW PART OF THAT, AND THEN I'M GOING TO ASK YOU

SOME QUESTIONS.

THE COURT: READ IT TO HIMSELF?

MR. SERRA: YES, YOUR HONOR.

Q READ IT TO YOURSELF.

A OKAY.

Q HAVING READ THE PROFFERED MATERIAL, IS YOUR

MEMORY NOW REFRESHED THAT IN 1980 YOU WERE -- YOU

SUFFERED A CONVICTION OF PENAL CODE SECTION

12020(A), WHICH IS A POSSESSION OF DEADLY WEAPON

CHARGE?


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A AND, AGAIN, I DON'T REMEMBER THAT, NO.

Q OKAY. WELL, 1980 IS A LONG TIME AGO.

A YES.

Q I WANT TO GO ON TO ANOTHER EXHIBIT.

MAY WE NOW HAVE B?

B HAS TWO PORTIONS. JUST SHOW THE FIRST

PORTION.

AND, SIR, WE'LL ALLOW YOU TO HAVE A COPY

OF IT IN THE EVENT THAT YOU CAN'T READ IT FROM THE

PROJECTION ON THE COMPUTER SCREEN.

MAY WE APPROACH TO GIVE HIM A COPY,

BECAUSE I'M ASSUMING IT'S STILL FUZZY UP THERE.

JUROR PORTER: YES.

THE COURT: YES.

BY MR. SERRA:

Q SIR, AGAIN, TRYING TO EXPEDITE MATTERS, YOU

SEE YOUR SIGNATURE AT THE BOTTOM?

A I DO.

Q AND DO YOU SEE IT'S A JUROR QUALIFICATION

QUESTIONNAIRE?

A UM-HUM.

Q AND DO YOU SEE YOUR NAME AT THE TOP OF THAT?

A I DO.

Q AND I WANT TO CALL YOUR ATTENTION TO NUMBER 7,

TO GET CONTEXT.


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SO LOOK AT 5. SAME AS BEFORE. "ARE

THERE ANY CHARGES NOW PENDING AGAINST YOU?"

AND YOU ANSWER NO, AND I HAVE NO ISSUE

WITH THAT.

NUMBER 6. "HAVE YOU EVER BEEN CONVICTED,

EITHER BY YOUR GUILTY OR NOLO CONTENDRE PLEA, OR BY

A COURT OR JURY TRIAL, OF A STATE OR FEDERAL CRIME

FOR WHICH PUNISHMENT COULD HAVE BEEN MORE THAN ONE

YEAR IN PRISON?"

AND IN THIS FORM, SIR, YOU SAY YES.

A YES.

Q AND WHY IS IT THAT IN THE PREVIOUS EXHIBIT, TO

WIT, D AS IN DOG, YOU SAID NO; AND IN THIS EXHIBIT,

B AS IN BOY, YOU SAY YES?

A THIS IS -- I ANSWERED THIS QUESTION BASED ON

MY WELFARE FRAUD.

Q AND WHY DIDN'T YOU ANSWER THE PREVIOUS

EXHIBIT'S QUESTION WITH REGARD TO YOUR WELFARE

FRAUD?

A BECAUSE I DIDN'T DO MORE THAN ONE YEAR.

Q DO YOU READ IT -- IT SAYS PUNISHABLE. THAT

MEANS YOU DON'T HAVE TO DO THE TIME. IF YOU'RE

SUBJECTED TO THE TIME, THAT WAS THE INTENT OF THAT

QUESTION.

IT'S THE SAME AS IN B.


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A OKAY. WELL, I ANSWERED BASED ON THAT.

Q PUNISHMENT COULD HAVE BEEN MORE THAN ONE YEAR?

A OKAY. I ANSWERED BASED ON THE FACT THAT I DID

ONLY FOUR MONTHS IN COUNTY JAIL. I DID NOT DO A

YEAR.

Q GOING NOW TO 7, THAT'S WHAT I'M MOST

INTERESTED IN, "IF YES, WERE YOUR CIVIL RIGHTS

RESTORED," AND YOU SAID YES?

A YEAH. I KNOW THAT MY CIVIL RIGHTS WERE NEVER

TAKEN AWAY, SO I ANSWERED THE QUESTION THAT, BASED

ON THE FACT THAT SINCE I HADN'T LOST THEM IN THE

FIRST PLACE, MY ASSUMPTION IS THAT I STILL HAD

THEM.

Q SIR, WAS -- ISN'T IT A FACT THAT AT SOME POINT

IN THE STATE PROCEEDING, THERE WAS APPLICATION MADE

BY YOU TO HAVE YOUR RECORD EXPUNGED, AND THEY CALL

THAT A 1203.4 MOTION.

DO YOU RECALL THAT?

A I'M SORRY. CAN YOU ASK THAT QUESTION AGAIN?

Q SURELY.

ISN'T IT A FACT, WITH REGARD TO THE 1994

CONVICTION WHEREIN YOU INDICATE THAT YOUR CIVIL

RIGHTS WERE RESTORED, THAT, IN FACT, THERE WAS A

MOTION MADE, NOT TO RESTORE YOUR CIVIL RIGHTS, NOT

FOR A PARDON, BUT, IN ESSENCE, TO HAVE YOUR


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CONVICTION EXPUNGED?

AND WHAT'S THAT CALLED. I DON'T KNOW IF

YOU KNOW WHAT IT'S CALLED, BUT IT'S CALLED A 1203.4

MOTION.

DO YOU RECALL THAT?

A ARE YOU ASKING ME IF AT SOME POINT I ASKED

THAT THE FELONY BE REMOVED OR DROPPED TO A LESSER

CHARGE? IS THAT WHAT YOU'RE ASKING ME?

Q THAT -- THAT IS ONE WAY TO SAY IT, YES.

A IF YOU'RE ASKING ME WHETHER I ASKED TO HAVE

THE FELONY REDUCED TO A MISDEMEANOR, THE ANSWER TO

YOUR QUESTION IS YES.

Q AND THEREAFTER, DID YOU ASK THAT IT BE

EXPUNGED? OR WITH THE MOTION TO REDUCE IT TO

MISDEMEANOR, AT THAT TIME, DID YOU ASK THAT IT BE

EXPUNGED?

A NO, I DON'T REMEMBER ASKING FOR IT TO BE

EXPUNGED.

Q ISN'T IT A FACT, SIR, THAT THE MOTION THAT WAS

MADE ON YOUR BEHALF, TO HAVE IT REDUCED TO A

MISDEMEANOR AND TO HAVE IT EXPUNGED, WAS DENIED?

A AND AGAIN, THE ANSWER TO YOUR QUESTION IS I

DON'T REMEMBER ASKING TO HAVE IT BE EXPUNGED. I

MERELY ASKED TO HAVE IT REDUCED FROM A FELONY TO A

MISDEMEANOR.


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IF THOSE TWO GO TOGETHER, THEN THE ANSWER

TO YOUR QUESTION WOULD BE YES.

MR. SERRA: MAY WE HAVE NUMBER 5?

THE COURT: IT HELPS US IF YOU JUST COME

TOTALLY IN ON IT AND THEN YOU COULD MOVE IT AROUND

TO SEE VARIOUS PARTS OF IT.

MR. SERRA: I ONLY DO THIS SEEKING TO

REFRESH MEMORY, BECAUSE IT'S ALREADY IN THE FILES.

MAY I APPROACH?


AND I'M SUGGESTING THAT THE ARM OF THAT

CAN GO DOWN. THAT SOMETIMES HELPS THE VISIBILITY

OF IT. THERE'S A BUTTON THAT ALLOWS YOU TO --

THERE YOU GO.

(PAUSE IN PROCEEDINGS.)

BY MR. SERRA:

Q HAVING READ THE AREA ON THE DOCUMENT THAT WE

JUST SHOWED YOU, IS YOUR MEMORY REFRESHED NOW THAT

YOUR PETITION TO THE COURT IN YOUR FELONY MATTER TO

HAVE THE CONVICTION REDUCED TO MISDEMEANOR AND

EXPUNGED PURSUANT TO CALIFORNIA PENAL CODE SECTION

1203.4 WAS DENIED?

A AND LET ME ANSWER YOUR QUESTION AGAIN, SIR. I

ASKED ONLY THAT IT BE REDUCED TO A MISDEMEANOR. I

NEVER ASKED FOR IT TO BE EXPUNGED.


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Q FINE.

A AND IT WAS DENIED.

Q AND IT WAS DENIED.

SO YOU NOW CONCEDE YOU WERE CONVICTED OF

AT LEAST ONE FELONY, NOT REDUCED TO A MISDEMEANOR,

AND IT WAS NEVER REDUCED TO A MISDEMEANOR BECAUSE

YOUR 1203.4 WAS DENIED. IS THAT A FAIR STATEMENT?

MR. FONDO: OBJECTION. MISSTATES THE

EVIDENCE.

THE COURT: I'LL ALLOW IT AS TO HIS

UNDERSTANDING AT THIS POINT.

JUROR PORTER: YES.

MR. SERRA: I WANT TO NOW PLACE REMARKS

ON THE SCREEN.

(DISCUSSION OFF THE RECORD BETWEEN

DEFENSE COUNSEL.)

BY MR. SERRA:

Q DO YOU SEE -- ARE YOU ABLE TO READ THIS

EXHIBIT?

A NO. IT'S FUZZY.

MS. WHITE: MAY I APPROACH?

BY MR. SERRA:

Q SIR, THIS IS THE ATTACHMENT TO THE PREVIOUS

EXHIBIT I SHOWED YOU, WHICH WAS YOUR JUROR

QUALIFICATION QUESTIONNAIRE.


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SO IT REFERS TO YOUR ANSWER IN 7.

AND IT, THEREFORE, IS AN ATTACHMENT, YOUR

HONOR, TO B.

DO YOU SEE WHERE, UNDER REMARKS -- YOU

RECOGNIZE YOUR HAND PRINTING THERE?

A I DO.

Q DO YOU SEE UNDER THE REMARKS, YOU SAY, "I CAN

VOTE BUT CANNOT PURCHASE A WEAPON UNTIL I HAVE PAID

FULL RESTITUTION."

A YES.

Q HOW DID YOU DERIVE THAT YOU COULD VOTE AND

POSSESS A WEAPON AFTER YOU HAD PAID FULL

RESTITUTION? WHERE DID THAT COME FROM?

A I VOTE REGULARLY, AND WHEN I WENT TO COURT,

THE JUDGE SAID "I WILL REDUCE THIS TO A FELONY -- I

MEAN REDUCE THIS TO A MISDEMEANOR WHEN YOU'VE PAID

ALL THE CHARGES AND WHEN YOU'VE PAID ALL THE

RESTITUTION," AND I HAVEN'T FINISHED PAYING THE

RESTITUTION.

Q WELL, WE SHOWED YOU THAT IT WAS NEVER UNDER --

WHEN THE 1203.4 WAS DENIED, IT WASN'T REDUCED.

SO, THEREFORE, ISN'T -- YOU KNOW THAT

WITH A FELONY CONVICTION, YOU CAN'T VOTE?

A WRONG, SIR. I HAVE BEEN VOTING IN EVERY

ELECTION IN THE LAST 15 OR 20 YEARS, SO I CAN -- I


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GO DOWN, I REGISTER, I VOTE.

Q BUT ISN'T THERE A FORM, WHEN YOU FILL OUT, I

DON'T KNOW, YOUR APPLICATION TO VOTE, THAT ASKS

YOU, "HAVE YOU BEEN CONVICTED OF A FELONY?" JUST

LIKE HERE?

A I DON'T REMEMBER.

Q AND THE IDEA THAT IF YOU PAID FULL

RESTITUTION, HAVING A FELONY CONVICTION, THAT YOU

COULD POSSESS A WEAPON, WHERE DID YOU GET THAT?

A AGAIN, IN COURT, THE JUDGE MADE IT VERY CLEAR

THAT ONCE I PAID THE RESTITUTION FOR THE WELFARE

FRAUD, THAT MY CONVICTION WOULD BE DROPPED FROM A

FELONY.

MY ASSUMPTION IS IF I NO LONGER CARRIED A

FELONY, I WOULD BE ENTITLED TO PURCHASE A WEAPON.

NOW, IF THAT'S A WRONG ASSUMPTION, SO BE

IT, BUT THAT'S AS I SAW IT.

Q BUT WEREN'T YOU TOLD -- OR WEREN'T YOU

KNOWLEDGEABLE THAT THE 1203.4 WAS DENIED;

THEREFORE, IT WASN'T REDUCED; THEREFORE, YOU CAN'T

HAVE A WEAPON; THEREFORE, YOU CAN'T VOTE? DIDN'T

SOMEONE TELL YOU THAT?

A NO.

Q DID YOU GET THE FORM THAT INDICATES YOUR

1203.4 WAS DENIED? DID YOU GET THAT FROM YOUR


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LAWYER, THE CLERK, OR ANYONE?

A YOU'RE ASKING ME ABOUT SOMETHING THAT HAPPENED

15 YEARS AGO, AND I'M TELLING YOU, AS I UNDERSTAND

IT, I HAVE VOTED IN EVERY ELECTION FOR THE PAST

UMPTEEN YEARS WITHOUT AN ISSUE.

AND AS I UNDERSTAND IT, ONCE I PAY BACK

THE RESTITUTION TO THE STATE OF CALIFORNIA FOR THE

WELFARE FRAUD, THE FELONY WILL BE REDUCED TO A

MISDEMEANOR.

AND IF I NO LONGER CARRY A FELONY, I'LL

BE ABLE TO PURCHASE A WEAPON IN THE UNITED STATES.

Q DO YOU -- DO YOU SEE -- AND I CAN BRING IT UP

IF YOU CAN'T READ IT -- DO YOU SEE IT SAYS,

QUESTIONS 5 AND 6, "CRIMINAL RECORD" ON THE RIGHT

SIDE OF THE EXHIBIT?

A I SEE THAT.

Q DO YOU SEE WHERE IT SAYS, "THE SENTENCE" --

STRIKE THAT.

ONE IS, "DISQUALIFIED FROM JURY SERVICE

ONLY FOR CRIMINAL OFFENSE PUNISHABLE BY

IMPRISONMENT FOR MORE THAN ONE YEAR, BUT IT IS THE

MAXIMUM PENALTY AND NOT THE ACTUAL SENTENCE WHICH

CONTROLS."

DID YOU EVER READ THAT WHEN YOU WERE

FILLING OUT THESE QUESTIONNAIRE FORMS?


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A I DON'T REMEMBER.

MR. SERRA: AND LASTLY, YOUR HONOR, WE

WOULD LIKE TO SHOW HIM A TRANSCRIPT OF HIS ANSWERS

GIVEN DURING VOIR DIRE PRIOR TO BEING QUALIFIED AS

A JUROR IN THIS CASE, AND THERE'S TWO PAGES THAT I

WANT TO SHOW.

Q DO YOU REMEMBER, SIR, WHEN YOU WERE IN THE

JURY -- YOU WERE IN A SEAT. I DON'T KNOW WHERE YOU

WERE, IT COULD BE IN THE BOX OR ELSEWHERE, BUT HIS

HONOR WAS QUESTIONING THE JUROR BEFORE YOU AND --

YOU CAN LOOK TO REFRESH YOUR MEMORY, BUT THE JUROR

BEFORE YOU --

THIS IS PAGE 78, YOUR HONOR.

-- INDICATES "I WAS CONVICTED OF TWO

FELONIES."

"THE COURT: ALL RIGHT. AND HOW LONG AGO

WAS THAT?"

THE JUROR SAYS, "ABOUT TEN YEARS AGO."

AND THEN HIS HONOR SAID, "TEN YEARS.

THAT DOES RAISE A QUESTION AS TO WHETHER OR NOT

YOUR CIVIL RIGHTS WERE AFFECTED BY THAT."

AND THEN HE SAYS, HIS HONOR SAYS, "ONE OF

THE RIGHTS YOU CAN LOSE BY BEING CONVICTED OF A

FELONY IS THE RIGHT TO VOTE OR THE RIGHT TO SERVE

AS TRIAL JUROR."


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NOW, THAT WAS RIGHT -- ON THE NEXT PAGE,

THE JUDGE WAS GOING TO BE TALKING TO YOU.

BUT DO YOU REMEMBER HEARING THAT, YOU

KNOW, DIRECTED TOWARD, I PRESUME, A JUROR SITTING

NEXT TO YOU DURING THE VOIR DIRE PROCESS?

A YES, I DO.

Q AND THEN GOING TO THE NEXT PAGE, HIS HONOR

SAYS, "LET'S SEE. MR. PORTER."

AND THEN YOU, "PROSPECTIVE JUROR: IT WAS

ME. I HAD A -- I GUESS IT WAS WELFARE FRAUD. I

GOT FOOD STAMPS OVER THE AMOUNT I WAS SUPPOSED TO

RECEIVE. IT WAS 25 YEARS AGO AND THAT'S WHAT

HAPPENED."

AND THEN THE COURT SAYS, "THOSE ARE THE

KINDS OF MISTAKES WE LIVE TO REGRET, BUT YOU'VE

MOVED AHEAD. THANK YOU VERY MUCH, MR. PORTER."

BUT NOW I'M ZEROING IN.

YOU KNEW, DID YOU NOT, THAT YOU'D BEEN

CONVICTED OF A FELONY IN '94?

A I ANSWERED THE QUESTION BY SAYING I HAD A

WELFARE FRAUD.

Q NO. YOU SAID IT WAS 25 YEARS AGO, SIR.

A MAYBE IT WAS 15 YEARS AGO.

Q YEAH.

A I ANSWERED THE QUESTION.


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Q NOW, A WELFARE FRAUD CAN BE CHARGED, YOU KNOW,

DEPENDING ON HOW MUCH AND HOW PROTRACTED THE

ELEMENTS ARE, CAN BE CHARGED AS A MISDEMEANOR OR A

FELONY.

SO YOU DIDN'T SAY, "YES, YOUR HONOR, YOU

KNOW, I WAS CONVICTED OF A FELONY. I THINK IT WAS

25 YEARS AGO. MIGHT HAVE BEEN 16."

YOU DIDN'T SAY ANYTHING LIKE THAT, SIR,

DID YOU?

A NO, I DIDN'T.

Q WHY NOT?

A NO REASON. I TOLD HIM I HAD A WELFARE FRAUD,

AND MY ASSUMPTION IS THAT THE COURT WOULD KNOW OR

ASK MORE QUESTIONS.

Q WERE YOU TRYING TO DECEIVE HIS HONOR BECAUSE

YOU WANTED TO BE ON THE JURY? YOU KNEW YOU HAD A

FELONY.

A I WOULD RATHER HAVE NOT DONE TWO WEEKS OF JURY

DUTY, OKAY? JUST LIKE EVERYBODY ELSE.

Q ISN'T IT JUST LIKE YOU VOTING? YOU HAVE A

FELONY ON YOUR RECORD AND YOU'VE BEEN VOTING.

YOU'RE NOT QUALIFIED TO VOTE, SIR.

YOU'RE JUST LIKE -- YOU'VE GOT A FELONY ON YOUR

RECORD, YOU'VE GOT TO TELL THE COURT ABOUT IT.

YOU'VE GOT TO PUT IT ON THE FORM. YOUR RIGHTS


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HAVEN'T BEEN RESTORED.

YOU TOLD A BUNCH OF FIBS, DIDN'T YOU?

A NO.

MR. SERRA: YOUR HONOR, AT THIS POINT I

HAVE NO FURTHER QUESTIONS.

THE COURT: VERY WELL. DOES THE

GOVERNMENT WISH TO QUESTION THE WITNESS?


GOVERNMENT COUNSEL.)

MR. FONDO: NO QUESTIONS, YOUR HONOR.

THE COURT: MR. PORTER, THERE WAS ONE

ASPECT OF YOUR STATEMENT THAT I WANTED TO INQUIRE

JUST A LITTLE BIT MORE ABOUT, AND I CAN APPRECIATE

THAT SOMETIMES THESE LEGAL PROCEEDINGS THAT TAKE

PLACE CAN BE COMPLICATED.

BUT WHAT WAS YOUR UNDERSTANDING AS TO

WHETHER A NEW MOTION WOULD NEED TO BE FILED TO TAKE

ANY FURTHER ACTION TO RESTORE YOUR RIGHTS ONCE YOU

HAD PAID WHATEVER FINE OR RESTITUTION WAS

OUTSTANDING?

DID YOU -- DID YOU UNDERSTAND THAT IT

WOULD JUST BE DONE AUTOMATICALLY AND YOU DIDN'T

HAVE TO GO BACK TO THE COURT AND VERIFY THAT

EVERYTHING HAD BEEN PAID?

OR DID YOU UNDERSTAND THAT ONCE YOU HAD


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DONE THAT, YOU'D HAVE TO RENEW YOUR MOTION TO HAVE

THE COURT TAKE SOME ACTION?

JUROR PORTER: RIGHT, THAT WAS MY

UNDERSTANDING, THAT ONCE I PAID THE RESTITUTION,

THEN I WOULD BE ABLE TO GO TO COURT AND ASK TO HAVE

THE FELONY REDUCED TO A MISDEMEANOR.

THE COURT: THERE WAS A TIME AFTER YOU

HAD INCURRED THIS CONVICTION WHEN YOU WERE SUBJECT

TO SOME PROBATION?

JUROR PORTER: YES.

THE COURT: AND WHAT -- DID THERE COME A

TIME WHEN YOU WERE ACTUALLY SUPERVISED BY A

PROBATION OFFICER?

JUROR PORTER: NO.

THE COURT: WAS THERE A --

JUROR PORTER: WELL, EXCUSE ME.

THERE MAY HAVE BEEN FOR THE FIRST WEEK OR

TWO, BUT -- IT WAS NOT A SUPERVISED PROBATION. I

DIDN'T HAVE TO REPORT EVERY COUPLE OF WEEKS OR

NOTHING LIKE THAT.

THE COURT: WAS THERE AN OCCASION WHEN

YOU WERE CHARGED WITH VIOLATING THE CONDITIONS OF

YOUR PROBATION AFTER THIS?

JUROR PORTER: NO. NO.

THE COURT: THERE HAD BEEN PREVIOUS


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PROBATIONS THAT HAD BEEN IMPOSED UPON YOU THAT WERE

SUPERVISED? OR NOT?

JUROR PORTER: NO.

THE COURT: POSSESSION OF A DEADLY WEAPON

IS ONE OF THOSE THINGS THAT THE COURT WOULD BE

CONCERNED THAT YOU -- WITH YOUR ANSWER ABOUT NOT

RECALLING THAT.

IS THERE SOMETHING ABOUT THOSE

CIRCUMSTANCES THAT EXPLAINS WHY SOMETHING LIKE THAT

WOULD ESCAPE YOUR MEMORY?

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 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.

THE COURT: I SEE.

JUROR PORTER: BECAUSE IT WASN'T AN

ACTUAL WEAPON. I DIDN'T HAVE IT. IT WAS JUST IN

THE CAR.

BUT I WAS NEVER CHARGED WITH ANYTHING OR

DID ANY TIME BECAUSE OF IT OR NOTHING LIKE THAT.

THE COURT: I SEE. VERY WELL.

JUROR PORTER: AS WELL AS A POOL CUE.


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MR. SERRA: MAY I ASKED ONE MORE, BASED

ON WHAT THE COURT --

THE COURT: SURE.

BY MR. SERRA:

Q SIR, DIDN'T THERE COME A TIME, SUBSEQUENT TO

YOUR CONVICTION IN 1994, THAT A WARRANT WENT OUT

FOR YOU BECAUSE, IN FACT, YOU HAD NOT SERVED YOUR

TIME? THEY PICKED UP AND THEN YOU, YOU KNOW,

YOU -- YOU DID DO YOUR TIME?

A NO.

Q NO WARRANT EVER WENT OUT FOR YOU? YOU WEREN'T

PICKED UP LATER?

A NO. I SHOWED UP. THEY TOLD ME WHEN TO BE

THERE FOR JAIL, I SHOWED UP, I DID MY FOUR MONTHS,

AND THEY LET ME GO EARLY AS A MATTER OF FACT

BECAUSE I DID THE COURT PROGRAM WHILE I WAS IN

THERE, AS I REMEMBER IT.

MR. SERRA: YOUR HONOR, I HAVE NO OTHER

QUESTIONS.

I DO WANT TO CORRECT A MISTAKE THAT I

UNWITTINGLY MADE. I WAS JUST INFORMED, AND I

ACCEPT IT AS VALID, THAT IN CALIFORNIA ONCE -- EVEN

WITH A FELONY CONVICTION, UNDER THE STATE LAW, ONCE

YOU'RE EITHER OFF PAROLE IF YOU GO TO PRISON, OR

OFF PROBATION IF YOU'RE GIVEN COUNTY JAIL AND


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PROBATION, YOU CAN VOTE.

I WAS WRONG. FORGIVE ME.

YOU CAN VOTE, SIR.

THE COURT: I WAS GOING TO COMMENT ON

THAT, NOT SO MUCH AS TELLING YOU, BUT ADVISING YOU

THAT THERE IS SOME QUESTION AS TO WHETHER OR NOT

WHAT COUNSEL SAID IS ACCURATE, AND YOU MIGHT WANT

TO CONSULT WITH OTHERS.

THE ONLY DISAPPOINTING PART OF THIS FOR

THE COURT, QUITE FRANKLY, IS YOUR STATEMENT ABOUT

JURY SERVICE.

I -- I ALWAYS WANT TO IMPRESS UPON

CITIZENS THE IMPORTANCE OF JURY SERVICE, AND I'D

HATE FOR YOU TO TAKE AWAY FROM THIS EXAMINATION

SOMETHING THAT WOULD SAY, "BOY, I WILL NEVER COME

TO THE AID OF MY COUNTRY AGAIN BY SERVING ON A JURY

BECAUSE OF THIS."

THIS IS PART OF THE PROCESS. IT IS

SOMETIMES COMPLICATED, THIS THING WE PUT TOGETHER

AND CALL A DEMOCRACY.

BUT BECAUSE IT'S COMPLICATED DOESN'T MEAN

WE EVER, EVER GIVE UP ON IT.

SO THANK YOU VERY MUCH FOR YOUR

APPEARANCE HERE.

AND UNLESS THE PARTIES HAVE GOOD CAUSE,


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I'LL EXCUSE MR. PORTER.

JUROR PORTER: PLEASE UNDERSTAND, YOUR

HONOR, IN THE FUTURE I'LL BE AS READY TO SERVE

AGAIN. I DON'T HAVE A PROBLEM WITH IT.

SHOULD I TAKE THESE WITH ME?

THE COURT: LET ME MAKE SURE THAT THERE

ARE NO OBJECTIONS.

MR. FONDO: NO OBJECTION, YOUR HONOR.

MR. SERRA: NO OBJECTION.

THE COURT: VERY WELL. YOU MAY BE

EXCUSED.

AND YOU CAN LEAVE THOSE PAPERS THERE.

ANY OTHER WITNESSES?

MR. FONDO: YOUR HONOR, ONE, I'D LIKE TO

MOVE INTO EVIDENCE A CERTIFIED RECORD OF

MR. PORTER'S VOTING RECORD TO SHOW THAT, IN FACT,

HE HAS VOTED IN CALIFORNIA.

IF THE COURT DEEMS IT UNNECESSARY, WE

WON'T GO THROUGH THAT.

THE COURT: IF YOU OFFER IT AND THERE'S

NO OBJECTION, THEN I'LL ACCEPT IT.

MR. SERRA: WELL, HE'S TESTIFIED TO IT.

I ACCEPT THAT AS ACCURATE. THEREFORE, I WOULD HAVE

NO OBJECTION.

THE COURT: VERY WELL. YOU MAY SUBMIT


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IT.

MR. FONDO: THANK YOU. IT'S GOVERNMENT

EXHIBIT NUMBER 1.

THE COURT: VERY WELL.

(WHEREUPON, PLAINTIFF'S EXHIBIT NUMBER 1,

HAVING BEEN PREVIOUSLY MARKED FOR

IDENTIFICATION, WAS ADMITTED INTO

EVIDENCE.)

MR. FONDO: YOUR HONOR, ALSO THE

GOVERNMENT HAS ANOTHER WITNESS, AND I WOULD PROFFER

TO THE COURT THAT SHE WILL -- SHE'S FROM THE SOLANO

COUNTY COURT. IT'S LESLIE SHELDON.

THE PURPOSE OF HER TESTIMONY IS TO VERIFY

THAT, ACCORDING TO COURT RECORDS, THERE WAS TWO

CHARGES -- THE 1980 CHARGES AND THE 1982 CHARGES

WERE, IN FACT, MISDEMEANORS.

AGAIN, IF THE COURT HAS -- IS SATISFIED

WITH THAT ASPECT OF THE EVIDENCE, I WON'T WASTE THE

COURT'S TIME.

OTHERWISE WE CAN CALL HER, AND I DON'T

ANTICIPATE HER TAKING VERY LONG.

MR. SERRA: YOUR HONOR, LET ME ANSWER

THIS WAY.

WHETHER OR NOT IT WAS MISDEMEANOR,

FELONY, BECAUSE IT'S A WOBBLER IS IRRELEVANT.


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THE ONLY THING THAT'S RELEVANT IS WHETHER

OR NOT THE POTENTIAL PUNISHMENT WAS FOR MORE THAN

ONE YEAR, THE STATE PENITENTIARY POTENTIAL.

SO THE COURT DOESN'T HAVE TO REALLY BE

CONVINCED IT WAS MISDEMEANOR.

THE COURT ONLY HAS TO BE CONVINCED THAT

THESE CHARGES SUBJECTED THE WITNESS TO MORE THAN

ONE YEAR AND SUCH IS THE CASE AND WE'VE OUTLINED

THAT IN OUR PAPERS.

THE COURT: WELL, LET ME SEE IF I CAN

FORESTALL THE ARGUMENT.

MR. SERRA: YES.

THE COURT: IT SOUNDS TO ME LIKE THERE'S

A LEGAL ISSUE WITH RESPECT TO THAT AND CALLING THE

WITNESS WOULD BE FOR ESTABLISHING A FACT, AND IT

DOES SEEM TO ME THAT IF THERE'S A QUESTION OF FACT,

I'LL ALLOW YOU TO CALL THE WITNESS.

I DON'T BELIEVE THERE -- ALTHOUGH THE

RECORD IS NOT CLEAR, I BELIEVE THAT BASED ON SOME

ANCILLARY DOCUMENTS THAT YOU ALL SUBMITTED TO THE

COURT, IT APPEARS TO THE COURT THAT THE ACTUAL

PUNISHMENT WAS AS A MISDEMEANOR, AND I TAKE THAT

COUNSEL'S ARGUING THAT HIS POSITION STANDS WITH

RESPECT TO THE OBLIGATION OF A JUROR TO REPORT IT

IN A PARTICULAR WAY, IRRESPECTIVE OF THE ACTUAL


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PUNISHMENT.

MR. SERRA: THAT'S TRUE. AND I READ FROM

THE EXHIBIT WHERE IT SAYS EXACTLY THAT.

IT ISN'T THE SENTENCE. IT IS WHAT YOU

WERE, YOU KNOW, FACING, SO TO SPEAK.

THE COURT: BUT IS YOUR -- YOU BROUGHT

YOUR WITNESS FROM SOLANO COUNTY?

MR. FONDO: WE DID, YOUR HONOR, BECAUSE

DEFENSE COUNSEL HAS ASSERTED IN PRIOR PAPERS THAT

THEY BELIEVED THOSE WERE FELONIES.

THE COURT: I SEE.

MR. FONDO: IF YOU DON'T OBJECT, YOUR

HONOR, MAYBE WE SHOULD HAVE THE WITNESS TESTIFY,

AND IT'LL BE BRIEF, UNLESS COUNSEL --

MR. SERRA: WELL, I OBJECT BECAUSE IT'S

NOT AN ISSUE. WHETHER IT'S A MISDEMEANOR OR A

FELONY IS IRRELEVANT.

THE COURT: SUSTAINED.

MR. SERRA: IF SHE'S GOING TO SAY 476 IS

A WOBBLER, I GUESS THAT WOULD BE.

BUT THEN SHE'D HAVE TO QUALIFY AS SOME

KIND OF A LEGAL EXPERT.

THE COURT: WELL, I'LL SUSTAIN THE

OBJECTION, BUT I DID WANT TO EXPRESS THE COURT'S

APPRECIATION FOR HER COMING.


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IF THE POINT OF HER TESTIMONY IS TO

INDICATE THE ACTUAL PUNISHMENT AND HOW THAT

QUALIFIES UNDER THE LAW, THAT'S A MIXED QUESTION OF

LAW AND FACT.

BUT I DON'T BELIEVE THERE'S ANY CLAIM

HERE THAT THE PUNISHMENT WAS AS A FELONY AND,

THEREFORE, THE OBJECTION IS SUSTAINED.

MS. ROSEN: YOUR HONOR, MAY I HAVE JUST

ONE MOMENT?



GOVERNMENT COUNSEL.)

MR. FONDO: YOUR HONOR, IT SEEMS -- ONE

ASPECT IS DEFENSE COUNSEL HAS ASSERTED IN THEIR

PAPERS THAT THE DEFENDANT LIED ABOUT THESE TWO

CONVICTIONS, THAT THEY WERE FELONIES AND HE DIDN'T

TELL THE COURT ON THE PAPERS OR ELSEWHERE.

I THINK THAT'S INCORRECT BECAUSE THESE

WERE MISDEMEANORS.

ALSO, BASED ON DEFENDANT'S UNDERSTANDING

AS HE TESTIFIED, HE SAID, YOU KNOW, "I UNDERSTOOD

THAT QUESTION TO MEAN WHETHER I WAS PUNISHED FOR

MORE THAN A YEAR," REFERRING TO ONE OF THE JUROR

FORMS.

AND SO TO THE EXTENT --


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THE COURT: I DON'T WANT THE RECORD TO BE

CONFUSED.

THAT MIGHT HAVE BEEN THE IMPORT OF HIS

ANSWER, BUT HE DIDN'T SAY THOSE WORDS.

MR. FONDO: WELL, OKAY. I -- OKAY.

THE COURT: I UNDERSTAND THAT HE MADE A

DISTINCTION, BUT HE DID NOT SAY THOSE WORDS.

BUT THAT IS THE -- THAT IS HOW I

UNDERSTOOD HIS ANSWERS.

MR. FONDO: WELL --

THE COURT: BUT THE -- AS -- IT COULD BE

THAT AT AN EARLIER POINT IN TIME THERE WAS AN

ARGUMENT AS TO THE NATURE OF THOSE OFFENSES AS TO

WHETHER OR NOT THEY WERE OR WERE NOT ACTUAL

CONVICTIONS OF FELONIES OR MISDEMEANORS.

AS I UNDERSTAND THE DEFENSE POSITION NOW,

THAT IS NOT THE POSITION THEY BELIEVE IS RELEVANT.

THE POSITION THEY ARE ASSERTING IS THAT

THE FORM NEEDS TO BE FILLED OUT IN A PARTICULAR

WAY, EVEN IF THE ACTUAL PUNISHMENT WAS AS A

MISDEMEANOR IF THE CRIME THAT IS CHARGED WAS

PUNISHABLE.

NOW, THAT'S A TERM THAT WE CAN ARGUE

ABOUT AND TALK ABOUT HERE IN A MOMENT.

BUT WHAT I'M SUSTAINING THE OBJECTION TO,


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IF YOU'RE STILL SPEAKING TO WHETHER OR NOT YOU

WOULD WISH TO CALL THE WITNESS, I SUSTAINED THE

OBJECTION AS IRRELEVANT AS TO WHETHER OR NOT WHAT

THE ACTUAL PUNISHMENT WAS.

MR. FONDO: UNDERSTOOD, YOUR HONOR.

THE COURT: I TAKE IT THERE'S NO FURTHER

EVIDENCE FROM YOU ALL.

MR. FONDO: NO, YOUR HONOR.

MR. SERRA: NO, YOUR HONOR.

THE COURT: NOW, THIS COULD BEAR ON

FURTHER BRIEFING, BUT I DID NOT EXPECT THAT, QUITE

FRANKLY, THESE PROCEEDINGS TO PRODUCE MORE NEW

EVIDENCE, OTHER THAN TO HAVE A SWORN STATEMENT OF

MR. PORTER FOR PURPOSES OF OUR RECORD.

THE PARTIES DID AN EXCELLENT JOB OF

RESEARCHING THE ACTUAL BACKGROUND, AND IT'S

UNDISPUTED AS TO HOW THE FORMS ARE FILLED OUT, WHEN

THEY WERE FILLED OUT, AND WHAT WAS SAID DURING THE

COURSE OF THE PROCEEDINGS.

SO I WOULD NOW INVITE THE PARTIES TO

ADDRESS THE COURT FURTHER WITH RESPECT TO THE LEGAL

SIGNIFICANCE OF THESE FACTS.

DO YOU WANT TO SPEAK FURTHER TO YOUR

MOTION?

MR. SERRA: YES. I THINK I'LL BE SHORT


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BECAUSE OUR PERSPECTIVE, AS THE COURT HAS

INDICATED, HAS BEEN MANIFESTED IN OUR RESPONSES AND

OUR INITIAL FILING.

HERE'S WHAT -- I LIKE MR. PORTER, YOU

KNOW, AND I WOULD TAKE HIM IN A MINUTE AS A JUROR,

AND I WOULD LOVE HIM AS A FOREPERSON.

ON THE OTHER HAND, I SEE A PATTERN, YOU

KNOW, DARE I SAY, OF DECEIT AND DECEPTION; OR A

CAVALIER ATTITUDE THAT, YOU KNOW, SEEKS, IN

ESSENCE, MAYBE IT'S A PSYCHOLOGICAL THING, TO DENY

THE ACTUALITY OF THINGS THAT HAVE AFFECTED HIS

LIFE.

HE STOOD UP THERE AND HE DIDN'T SEEM TO

REMEMBER THE FOUR CONVICTIONS IN THE '80S.

WELL, THAT IS A LONG TIME AGO, BUT BY

GOD, THOSE ARE SIGNIFICANT EVENTS IN A PERSON'S

LIFE, AND HE WAS DENYING IT.

AND THEN YOU SAW, HE FILLS OUT ONE FORM

AND HE SAYS NOTHING. THEN THE OTHER FORM, "YES, MY

CIVIL RIGHTS HAVE BEEN RESTORED," AND WE'VE SHOWN

YOU GETTING CIVIL RIGHTS RESTORED IS A VERY ARDUOUS

PATH AND 1204 DOESN'T DO IT -- 1203.4 DOESN'T DO

IT, SO HE NEVER HAD ANY CIVIL RIGHTS RESTORED.

AND I GUESS THE ISSUE COMES AS, YOU KNOW,

BENEATH ALL OF THE FALSE ANSWERS AND THE


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INCONSISTENT ANSWERS, YOU KNOW, IS THERE MENS REA?

AND MAYBE THAT'S A HARD ONE FOR THE

COURT, YOU KNOW, TO, TO JUDGE ON.

BUT --

THE COURT: WHAT IS YOUR POSITION IS THE

STANDARD?

MR. SERRA: I'M SORRY?

THE COURT: WHAT IS THE LEGAL STANDARD

THAT HAS TO BE REACHED BY THE DEFENDANT TO --

MR. SERRA: PATTERN OF --

THE COURT: -- CONVINCE THE COURT OF --

MR. SERRA: FROM MY PRACTICE, FROM MY

PERSPECTIVE, A PATTERN OF DECEPTION, A PATTERN OF

DECEPTION.

AND I'VE TRIED TO SHOW THROUGH, YOU KNOW,

THE EXHIBITS THAT I QUESTIONED HIM ON AND HIS

ANSWER TO YOU DURING VOIR DIRE THAT THAT'S A

PATTERN OF DECEPTION.

AND WE JUST CAN'T EXCUSE HIM WILLY NILLY

THAT, OH, HE DON'T REMEMBER OR, YOU KNOW, HE

MISUNDERSTOOD OR WORDS TO THAT EFFECT BECAUSE THIS

IS SERIOUS AND THIS IS A FEDERAL, YOU KNOW,

PROCEEDING, AND MY CLIENT SUFFERED POTENTIALLY DIRE

CONSEQUENCES AND, THEREFORE, THE STANDARD HAS TO BE

STRICT AND, YOU KNOW, REGARDLESS OF THE, I DON'T


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KNOW, THE -- THAT YOU WANT TO FEEL, YOU KNOW,

EMPATHETIC, WHICH I DO, TOWARD HIM, REGARDLESS OF

THAT, THERE'S BEEN A PATTERN OF DECEPTION THAT'S

IMPLIED BIAS, SO WE GET A NEW TRIAL.

THAT'S THE WAY I SEE IT, YOUR HONOR.

THE COURT: GOVERNMENT?

MR. FONDO: YOUR HONOR, I THINK, BY

LOOKING AT THE DOCUMENTS THAT HAVE BEEN SUBMITTED

TO THIS COURT, LOOKING AT THE JUROR'S TESTIMONY, OR

RESPONSES TO THE QUESTION, LOOKING AT HIS RESPONSES

TODAY, WE DON'T SEE A PATTERN OF LYING AT ALL.

WHAT WE SEE IS SOMEONE WHO IS TRYING TO

DO THEIR CIVIC DUTY, DID THE BEST THAT HE COULD

WITH THESE FORMS; MAY HAVE ANSWERED ONE OR TWO

THINGS INCORRECTLY, ALTHOUGH, FOR INSTANCE, WITH

THE FORMS, HE FILLED ONE OUT WHERE HE SAID "YES, I

WAS PUNISHED BY A CRIME."

I MEAN, "I HAD THIS" -- YOU KNOW, HE

CHECKED THE BOX YES WHERE IT WAS MORE THAN ONE YEAR

AND EXPLAINED IT. HE EXPLAINED TO THE COURT, "I

HAVE A WELFARE FRAUD CONVICTION."

THIS WAS NOT A -- AND AS YOU SAW BY THE

WITNESS TODAY, THIS WAS NOT A WITNESS WHO WAS

HIDING.

BUT EVEN IF HE LIED ABOUT EVERY SINGLE


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THING THAT DEFENSE COUNSEL HAS SAID, WHICH IS HIS

CRIMINAL RECORD, THAT FALLS FAR SHORT OF THE

REQUIREMENT TO SHOW IMPLIED BIAS.

IMPLIED BIAS IS ONLY FOUND IN EXCEPTIONAL

CIRCUMSTANCES, EXCEPTIONAL, EXTRAORDINARY

CIRCUMSTANCES.

YOU HAVE TO SHOW THAT THE DEFENDANT LIED

ABOUT MATTERS THAT WERE COLLATERAL TO THE

PROCEEDING; IN OTHER WORDS, THAT RELATE TO WHAT THE

DEFENDANT IS BEING CONVICTED OF.

FOR INSTANCE, THERE'S THE COUGHLIN

CASE -- EXCUSE ME -- THERE'S THE DYER CASE WHERE

THE JUROR'S BROTHER HAD BEEN A VICTIM OF A VERY

SIMILAR CRIME THAT THE DEFENDANT HAD DONE.

THE DEFENDANT -- THE JUROR LIED IN A

HEARING LIKE THIS AND WAS FOUND TO HAVE LIED.

THE JUROR THEN, AFTER THE CASE, WENT AND

BECAME A CORRECTIONAL OFFICER AND LOOKED THROUGH

THE FILES OF THAT DEFENDANT.

YOU DON'T HAVE THAT HERE, YOUR HONOR.

ALL WE HAVE IS SOMEONE WHO, AT WORST,

LIED ABOUT PORTIONS OF THEIR CRIMINAL HISTORY.

AND WE DON'T BELIEVE HE MADE ONE

MISSTATEMENT TO THIS COURT.

BUT EVEN IF HE DID, THERE'S BEEN NO


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IMPLIED BIAS THAT THIS DEFENDANT WAS GUNNING FOR

THE DEFENDANT, WAS GUNNING TO GET ON THIS JURY, AND

WAS GUNNING TO CONVICT HERE.

QUITE THE CONTRARY AS THE COURT -- AS THE

DEFENDANT -- EXCUSE ME -- AS THE JUROR TESTIFIED.

HE SAID, "I DIDN'T WANT TO DO THE TWO

WEEKS. I DID IT, BUT IT WASN'T MY CHOICE."

AND THEY DIDN'T ELICIT ONE SHRED OF

EVIDENCE THAT INDICATING ANYTHING BEYOND --

ANYTHING SHOWING IMPLIED BIAS.

THE NINTH CIRCUIT STANDARD AS SET OUT IN

THE COUGHLIN CAUSE, AND IT'S ON PAGE 10 OF OUR

BRIEF, LISTS THE FOUR BUCKETS OR CATEGORIES OF HOW

THAT IMPLIED BIAS CAN BE SHOWN.

THEY HAVEN'T SHOWN ANY OF THAT.

THE COURTS ARE CLEAR THAT SIMPLY BEING A

FELON, AND EVEN LYING ABOUT YOUR CRIMINAL RECORD,

IS NOT ENOUGH.

AND I CITE THE COURT TO THE COUGHLIN CASE

WHICH WE CITED BEFORE WHERE THE JUROR DID LIE ABOUT

THEIR CRIMINAL RECORD QUITE EXTENSIVELY.

SO THEREFORE, YOUR HONOR, WE BELIEVE THAT

THE DEFENSE HAS FALLEN FAR SHORT OF THEIR EXTREMELY

HIGH BURDEN.

MR. SERRA: JUDGE, LET ME JUST RESPOND


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WITH ONE VIGNETTE.

IN CLOSE PROXIMITY TO HIS VOIR DIRE UNDER

OATH RESPONSES TO THE COURT, IN THE PAPERWORK WE

JUST SAW, HE PUT IT WAS A CONVICTION IN '94.

HE KNEW IT WAS '94.

BUT TO YOU, "OH, 25 YEARS AGO. YOU KNOW,

I CAN'T -- SO FAR, 25."

HE KNEW THAT WAS A LIE. HE HAD TO KNOW

IT BECAUSE WITHIN, I DON'T KNOW, A MATTER OF WEEKS

OR WHATEVER THE DATES ARE, CERTAINLY NOT A LONG

TIME BEFORE, HE KNEW THAT IT WAS IN THE '90S, IN

'94, AND HE SAID 25 YEARS.

SO THAT'S A LITTLE, YOU KNOW, INSIGHT

INTO WHAT HE'S TRYING TO DO. HE'S TRYING TO GET ON

THE JURY TO DECEIVE.

AND IT'S EASY ENOUGH TO INFER THAT, YOU

KNOW, HE, HE HAD TAKEN THE MEDICINE; THEREFORE, THE

DEFENDANT HERE HAS TO TAKE THE MEDICINE.

THAT IS, THERE'S A MOTIVE IMPLIED IN THE

DECEPTION, IN THE -- FROM MY PERSPECTIVE, THE VERY

CONCRETE, OVERT DECEPTION TO YOU, YOU KNOW, UNDER

OATH, TO YOU.

SO, YOU KNOW, I THINK THAT THE CASES THAT

WE CITED THAT PERVASIVE DECEPTION, YOU KNOW,

SYSTEMATIC DECEPTION, A PATTERN OF DECEPTION, WE


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HAVE THAT HERE AND YOU INFER, YOU KNOW, THE BIAS

FROM THE DECEPTION.

HE'S -- OBVIOUSLY, YOU KNOW, THE CASES

THAT HE CITED ARE MORE EGREGIOUS.

THAT DOESN'T MEAN THAT WE AREN'T ENTITLED

TO A REMEDY FOR WHAT HE DID.

I THINK THE PRINCIPLE IS WELL SERVED.

HOW CAN -- HOW CAN SOMEONE WHO IS BEREFT

OF HONESTY, WHO IS, YOU KNOW, DECEIVING THE COURT,

HOW CAN THAT PERSON SIT ON CREDIBILITY? YOU KNOW?

IT JUST -- IT'S OXYMORON. HE CAN'T --

SOMEONE WHO LIES AND SOMEONE WHO CHEATS SHOULD NOT

BE THE ONE TO JUDGE OTHER'S CREDIBILITY OR HONESTY.

AND THAT'S WHAT OCCURRED AND THAT'S WHY

WE DIDN'T GET A FAIR TRIAL IN THIS CASE, OR ONE OF

THE REASONS.

THE COURT: WELL, I'LL GIVE YOU SOME

COMMENT HERE.

THIS IS PART OF A MUCH LARGER MOTION. I

DIVIDED IT FOR PURPOSES OF THESE PROCEEDINGS

BECAUSE I DID WANT TO GIVE THE PARTIES THE

OPPORTUNITY TO EXAMINE MR. PORTER UNDER OATH, TO

HEAR HIS EXPLANATIONS.

AND I THINK THAT YOUR COMPETING VIEWS OF

HIM DON'T, QUITE FRANKLY, DIFFER VERY MUCH.


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IT DOES APPEAR TO ME THAT THERE WAS

PERHAPS GENUINE CONFUSION THAT I COULD SEE BETWEEN

THE ATTITUDE HE HAD AS TO HOW HE FILLED OUT THESE

FORMS.

I DON'T RECALL THE CHRONOLOGY.

THE DEFENSE DOES MAKE A GOOD POINT THAT

CLOSE IN TIME TO HIS ACTUAL MAKING THE STATEMENTS,

THE DATES DON'T ADD UP, THAT HE WOULD CONFUSE THE

LENGTH OF TIME.

BUT SOMETIMES THINGS IN THE PAST CAN BE

SUMMARIZED AS 25 YEARS WHEN, INDEED, IT'S 15, AND

PEOPLE CAN REGARD THAT AS NOT BEING A SIGNIFICANT

DIFFERENCE BECAUSE OF THEIR OWN ATTITUDE ABOUT THE

LENGTH OF TIME.

THE PART OF HIS TESTIMONY THAT I WANT TO

THINK ABOUT MORE, QUITE FRANKLY, IS THE -- WHAT

OCCURRED DURING THE VOIR DIRE AND HOW HE RESPONDED

TO IT.

A JUROR JUST IMMEDIATELY BEFORE HIM HAD

BEEN EXCUSED FOR A FELONY CONVICTION THAT HAD

HAPPENED WITHIN TEN YEARS.

AND WHEN HE WAS ASKED TO RESPOND TO HIS

EARLIER RAISING HIS HAND ABOUT HIS MATTER, HE DATED

IT LONGER.

AND THEN HE INDICATED THAT AFTER HIS


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DISCLOSURE, HE EXPECTED FURTHER QUESTIONS.

SO IT SEEMS TO ME THAT THAT'S A TACIT

ADMISSION ON HIS PART THAT HE UNDERSTOOD WHAT HE

SAID PROVOKED SOMETHING THAT SHOULD HAVE BEEN THE

SUBJECT OF FURTHER QUESTIONS, AND THAT THERE WAS

SOMETHING THAT HE WOULD -- HE FELT HE WOULD NEED TO

SAY TO BE MORE EXPLICIT ABOUT THESE MATTERS, BUT HE

WAS WAITING TO BE ASKED.

EARLIER IN THESE PROCEEDINGS, THERE WAS

AN OBJECTION TO THE EVIDENTIARY HEARING ITSELF ON

THE PART OF THE GOVERNMENT BECAUSE THE DEFENSE

DIDN'T ASK.

AND SO ONE OF THE THINGS THAT I WANT TO

CONSIDER IS THE EFFECT OF THE STANDARD THAT HAS TO

BE MET IF A JUROR INTENTIONALLY WITHHOLDS

INFORMATION, AS OPPOSED TO GIVING MISINFORMATION.

I GUESS DECEPTION CAN OCCUR NOT ONLY BY A

COMISSION, BUT OMISSION.

AND HERE THE JUROR EXPECTED FURTHER

QUESTIONS BECAUSE HE REALIZED THAT WHAT HE HAD SAID

WAS NOT THE COMPLETE STATEMENT OF THE

CIRCUMSTANCES, BUT WAS WHAT HE REGARDED AS, PERHAPS

IN GOOD FAITH, BECAUSE THESE ARE EMBARRASSING

THINGS, SIGNALLING THAT THERE WAS SOMETHING THAT

WAS IN HIS BACKGROUND THAT MIGHT DISQUALIFY HIM.


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AND ALTHOUGH HE SAYS NOW THAT HE DID NOT

SERVE IN A VOLUNTARY, FULLY VOLUNTARY MANNER, WE

HAVE TO VIEW THAT STATEMENT IN LIGHT OF HIS BEING

INVOLVED IN THESE PROCEEDINGS.

HIS POST-TRIAL STATEMENT TO THE PRESS

DIDN'T EXHIBIT ANY RELUCTANCE TO SERVE.

AND IT DOES SEEM TO ME THAT I HAVE TO PUT

HIS ATTITUDE TODAY IN COURT INTO THE PERSPECTIVE.

THE STRONGEST PART OF THE DEFENSE

ARGUMENT THAT THE COURT FEELS IT HAS TO OVERCOME IS

THE NOTION THAT IF A JUROR WITHHOLDS INFORMATION

THAT MIGHT SUBJECT THE JUROR TO BEING REMOVED FROM

THE JURY, BECAUSE THIS CALLS INTO QUESTION HIS

QUALIFICATIONS TO SERVE, TO BE ON THE JURY IN THE

FIRST PLACE, IF THE JUROR WITHHOLDS THAT, CAN I

INFER FROM THAT A DESIRE TO BE ON THE JURY?

I THINK THAT WOULD BE FAIR BECAUSE THAT

IS REASONABLE TO INFER THAT THE JUROR DOESN'T WANT

TO BE EXCUSED FOR THOSE BACKGROUND FACTS.

BUT THE GOVERNMENT -- I MEAN THE DEFENSE

GOES ON TO ARGUE THAT I CAN INFER FROM THAT SOME

BIAS TOWARD THE DEFENDANT.

I'M NOT SURE I CAN GO THAT FAR.

IT DOES SEEM THAT THAT IS SOMETHING I

WANT TO PONDER FURTHER, THE ARGUMENT BEING THAT


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HE -- FEELING THAT HE HAD, HIMSELF, PLED GUILTY AND

COME CLEAN ABOUT HIS BACKGROUND, HE HARBORED SOME

BIAS AGAINST A DEFENDANT WHO CHOSE TO GO TO TRIAL.

THE OTHER ARGUMENT, WHICH IS COMPELLING

AND I WANT TO PONDER, IS THE IDEA THAT THIS WAS

PURELY A CREDIBILITY BATTLE.

THE JURY COULD NOT HAVE KNOWN THAT AT THE

BEGINNING OF THE TRIAL, BUT AS IT TURNED OUT, IT

WAS A CREDIBILITY BATTLE BETWEEN THE CLIENT AND A

LAWYER AS TO THE CONTENT OF PARTICULAR

CONVERSATIONS WHICH PLACED THE EVENTS THAT WERE

OBJECTIVE, NAMELY, WRITING CHECKS AND WHEN THEY

WERE WRITTEN, INTO A CONTEXT OF WHY THOSE CHECKS

WERE WRITTEN AND UNDER WHAT CIRCUMSTANCES AND

KNOWLEDGE, THE CRIME HERE REQUIRING KNOWLEDGE.

AND SO THE QUESTION OF KNOWLEDGE WAS ONE

THAT WAS A CREDIBILITY BATTLE BETWEEN MS. HARMON

AND HER CLIENT AT THE TIME WITH RESPECT TO THE

NATURE OF THE DISCLOSURES AND WHETHER OR NOT THERE

WAS AN ADMISSION OF GUILT, AS OPPOSED TO A

PROFESSION OF BEING AN UNWITTING PARTICIPANT

SEEKING TO PROTECT HIS REPUTATION THROUGH HAVING A

GOOD LAWYER TO -- SO THAT HE WOULDN'T BESMIRCH HIS

REPUTATION BEFORE THE BAR AND WANTING TO MAINTAIN

HIS INNOCENCE AND THAT THE MONEY WAS A BUSINESS


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DISPUTE AS OPPOSED TO PART OF A LARGER CONSPIRACY

TO HIDE THE PROCEEDS.

THIS ALL GOES TO THE OTHER MOTION THAT I

HAVE BEFORE ME.

BUT THAT'S WHERE THESE TWO MOTIONS COME

TOGETHER AS THE COURT CONSIDERS WHETHER OR NOT THE

FAIRNESS OF THE TRIAL IS INFECTED BY WHAT TURNED

OUT TO BE THE PRESIDING JUROR WITHHOLDING

INFORMATION ABOUT AN OFFENSE THAT IS -- HAS

ELEMENTS IN COMMON.

THE IDEA OF WELFARE FRAUD AND THIS CHARGE

OF MONEY LAUNDERING HAVE ASPECTS VERY MUCH IN

COMMON.

THE GOVERNMENT'S ARGUMENT IS QUITE

COMPELLING AS TO THE STANDARD. IT IS A HIGH

STANDARD TO GRANT A NEW TRIAL THAT IS IMPOSED UPON

THE DEFENDANT.

QUITE FRANKLY, I WAS ASKING FOR AN

ARTICULATION OF WHERE THAT STANDARD IS. IS IT

BEYOND A REASONABLE DOUBT? IS IT BY A

PREPONDERANCE OF THE EVIDENCE? IS IT CERTAINTY?

I WANT TO SATISFY MYSELF AS TO HOW HIGH

THAT STANDARD IS THAT THE DEFENSE MUST MEET.

THE OTHER QUESTION THAT I ASKED OF MYSELF

IS WHETHER OR NOT THERE WOULD BE ANY PREJUDICE TO


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THE GOVERNMENT TO ORDER A NEW TRIAL OF THESE

PROCEEDINGS WITH A JURY THAT IS NOT FACED WITH THE

KINDS OF CIRCUMSTANCES WE HAVE HERE -- OR PREJUDICE

TO THE DEFENDANT, OF COURSE, IF WE DON'T -- AND THE

APPEALABILITY OF MY ORDER TO DENY THE CASE.

SO THOSE ARE MATTERS THAT I'LL PAUSE AND

SEE IF THE PARTIES WANT TO HAVE THE COURT EXPRESS

ITSELF, AS I HAVE, WITH RESPECT TO THE QUESTIONS,

NOT THE ANSWERS, BUT THE QUESTIONS THAT I HAD

RAISED IN MY OWN MIND WITH RESPECT TO THIS ISSUE.

I'VE ACTUALLY BEEN THINKING ABOUT IT MUCH

LONGER THAN THESE PROCEEDINGS, AS WELL AS HAVING

UNDER SUBMISSION THE MOTIONS HAVING TO DO WITH THE,

WITH THE CONSTITUTIONAL PRINCIPLES THAT ARE CITED

BY THE DEFENSE IN THEIR MOTION HAVING TO DO WITH

WHETHER LAWYERS ARE -- AS APPLIED TO LAWYERS THE

STATUTE IS UNCONSTITUTIONAL.

I WANT TO ALSO JUST COMMENT AT THIS POINT

THAT AS I UNDERSTAND IT, THERE IS NO MOTION THAT --

FOR ACQUITTAL MADE BY THE DEFENSE AT THE CLOSE OF

THE GOVERNMENT'S CASE ON THE GROUND THAT THE

GOVERNMENT FAILED TO PROVE EACH OF THE ELEMENTS.

THERE'S NO MOTION ATTACKING THE

CONSTITUTIONALITY OF THE STATUTE ON ITS FACE,

BECAUSE SOME OF THOSE THINGS HAVE COME UP IN MY OWN


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CONSIDERATION OF IT, AND THERE IS -- THERE'S ONE

OTHER ASPECT OF THIS THAT I KEPT -- OH, THERE IS --

THERE'S NO MOTION HAVING TO DO WITH THE, THE

VAGUENESS OF THE STATUTE ITSELF.

THIS IS A STATUTE WHICH, AS I'VE EXAMINED

ITS WORDING, REQUIRES THAT THE GOVERNMENT SPECIFY A

PARTICULAR CHARGE, AND THE KNOWLEDGE ELEMENT IN THE

STATUTE REQUIRES THAT THE DEFENDANT KNOW THE CHARGE

THAT IS SPECIFIED BY THE GOVERNMENT, AND IT DID

RAISE A QUESTION IN MY OWN MIND AS TO HOW A

DEFENDANT COULD KNOW THE SPECIFIED CHARGE IF THE

CHARGE IS NOT MADE AT THE TIME OF THE ALLEGED

EVENT?

BUT I DON'T HAVE BEFORE ME A MOTION

HAVING TO DO WITH THE VAGUENESS OF THE STATUTE

ITSELF.

I FOUND THE WORDING OF THE STATUTE

CURIOUS.

BUT HAVING SAID ALL OF THAT, LET ME PAUSE

AND SEE WHETHER OR NOT EITHER SIDE WOULD WISH TO

COMMENT BRIEFLY BEFORE I HAVE THIS PART OF THE

MOTION UNDER SUBMISSION.

MR. SERRA: YOUR HONOR, YOUR FINE

ANALYTICAL MIND HAS RAISED A NUMBER OF ISSUES THAT

WE WOULD DESIRE TO RESPOND TO IN WRITING, FOR


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INSTANCE, THE STANDARD; FOR INSTANCE, THE VAGUENESS

THAT YOU JUST ENUNCIATED.

I KNOW THAT YOU MAY NOT WANT TO GO ON AND

ON, BUT I THINK WE WOULD LIKE AN OPPORTUNITY TO

ADDRESS, IN WRITTEN FASHION WITH POINTS AND

AUTHORITIES, AT LEAST SEVERAL OF THE ISSUES THAT

YOU HAVE JUST NOW ANNOUNCED BEFORE YOU RULE.

THE COURT: ANYTHING FROM THE GOVERNMENT?

MR. FONDO: NO. WE HAVE NO OBJECTION.

THAT'S FINE.

THE COURT: VERY WELL. I APPRECIATE YOU

TAKING THE TIME AND BRINGING THIS PART OF THE

MATTER TO A CLOSE.

I'LL HAVE THIS AND THE OTHER MATTERS

UNDER SUBMISSION.

IF YOU WISH TO MAKE FURTHER MOTIONS, YOU

NEED TO GET THE COURT'S PERMISSION TO DO THAT. I

CONSIDER THAT I HAVE ENOUGH ON MY PLATE.

I WAS JUST ARTICULATING FOR MYSELF THE

THINGS THAT I DON'T HAVE TO DO AND THAT I'M NOT

ADDRESSING.

IF YOU WANT TO ASK ME TO ADDRESS OTHER

THINGS, BECAUSE OF -- THIS IS A CRIMINAL CASE AND I

ALWAYS WANT TO MAKE SURE THAT THE FAIRNESS OF THE

PROCESS IS OBSERVED, SO I'LL -- YOU NEED TO DO IT


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VERY QUICKLY AS TO SUPPLEMENT.

JUST BECAUSE I WONDER ABOUT THINGS

DOESN'T MEAN THAT THERE IS ANYTHING DO IT. I WANT

TO CAUTION YOU.

BUT IT DOES -- IT IS SOMETHING THAT I

WANTED YOU TO KNOW THAT THE COURT WAS LOOKING AT.

AND SO YOU'LL -- I WON'T FORECLOSE IT,

BUT AT THIS POINT, I'M NOT FINDING THAT IT WILL BE

ALLOWED.

YOU CAN MAKE YOUR REQUEST, AND THE

GOVERNMENT GETS TO RESPOND TO IT, AND THEN I'LL

DECIDE IT.

MR. FONDO: YOUR HONOR --

THE COURT: OTHERWISE -- YES?

MR. FONDO: I'M SORRY. JUST FOR

CLARIFICATION, I WAS NOT -- I DIDN'T HAVE AN

OBJECTION RELATING TO FILING A SUPPLEMENTAL BRIEF

ON THE STUFF THAT'S ALREADY BEEN BRIEFED, ET

CETERA.

WE WOULD OBVIOUSLY OBJECT TO, OR AT A

MINIMUM RESERVE OUR -- WE WOULD OBJECT TO ANY

ADDITIONAL MOTIONS BEING FILED.

THE COURT: WELL, LET'S SEE IF ANY ARE

FILED AND WE'LL DEAL WITH THAT.

VERY WELL. THIS MATTER IS UNDER


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SUBMISSION. THANK YOU ALL.

MR. FONDO: THANK YOU, YOUR HONOR.

MR. SERRA: THANK YOU VERY MUCH, YOUR

HONOR.

(WHEREUPON, THE PROCEEDINGS IN THIS

MATTER WERE CONCLUDED.)


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CERTIFICATE OF REPORTER

I, THE UNDERSIGNED OFFICIAL COURT

REPORTER OF THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

CERTIFY:

THAT THE FOREGOING TRANSCRIPT,

CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

TRANSCRIPTION TO THE BEST OF MY ABILITY.

/S/_____________________________LEE-ANNE SHORTRIDGE, CSR, CRRCERTIFICATE NUMBER 9595


Case5:08-cr-00938-JW Document217 Jamie Leigh Harley Criminal File US District Court

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Transcript of Case5:08-cr-00938-JW Document217 Jamie Leigh Harley Criminal File US District Court