Gary Ermoian's Motion Regarding Steve Jacobson's False Info in Flier and Modesto Bee

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JOHN BALAZS, Bar #157287Attorney At Law916 2nd Street, Suite F Sacramento, California 95814Telephone: (916) [email protected]

Attorney for DefendantGARY ERMOIAN

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

GARY ERMOIAN, et al.

Defendants.

_______________________________

)))))))))))))

No. CR-F 08-224-OWW

DEFENDANT GARY ERMOIAN’SJOINDER IN DEFENDANT ROBERTHOLLOWAY’S MOTION FORDISCLOSURE AND ERMOIAN’SREPLY TO THE GOVERNMENT’SRESPONSE TO HIS MOTION FOREXCULPATORY AND IMPEACHMENTMATERIAL IN THE PERSONNELFILES OF GOVERNMENT AGENTS

Hon. Oliver W. Wanger

In its response filed May 7, 2009 to defendant Gary Ermoian’s motion for

exculpatory and impeachment material in the personnel files of government agents, the

government states only that it “will cause a review to be conducted concerning the

personnel files of the government agents it intends to call at trial in this case, pursuant to

United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991).” Government Response, at 1. This

response is wholly insufficient. The government neither represents that it will turn over

discoverable Henthorn material in the agents’ personnel files nor does it agree that its

Henthorn obligations apply to its witnesses at pretrial evidentiary hearings. See United

States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000) (requiring disclosure of

exculpatory materials with respect to suppression hearing). Given that FBI agent Nathan

Case 1:08-cr-00224-OWW Document 242 Filed 05/20/09 of 4

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Elias, Modesto Police Department Detective Terry Seese, and Stanislaus County District

Attorney’s investigator Kirk Bunch have already testified at bail hearings in this case, the

government should immediately disclose any exculpatory or impeachment material in their

personnel files to defense counsel.

Moreover, defendant Robert Holloway recently filed a motion calling for the

immediate disclosure of evidence of possible government misconduct in its wiretap

applications in this case, for related Brady evidence, and for an order preserving evidence

pending hearing, which was filed May 19, 2009. This motion is based largely on troubling

allegations by a purported former or present ATF agent about the wiretap application

process in this case. In no uncertain terms, this ATF agent states that “Officers committed

perjury in their application for the [wire]tap.” Exhibit A, at 2 (excerpt of website at

http://cleanupatf.org/blogs/?s=wiretap&y=14). As Holloway’s motion states, this letter

contains information that “may indeed undermine the integrity of the entire prosecution.”

Holloway Motion for Disclosure, at 3. Ermoian hereby joins in the motion and requests

that the Court order all the relief requested in the motion.

Further, counsel is also aware that the Stanislaus District Attorney investigator

Steven L. Jacobson disseminated false and potentially dangerous information to the press

and public about Ermoian shortly after a warrant was issued for his arrest. On December

3, 2008, the Modesto Police Department’s Crime Stoppers Website falsely stated that

Ermoian is “wanted by Federal Authorities on charges of Extortion and Racketeering” and

“[s]hould be considered armed and dangerous.” Exhibit B (Modesto Police, Crime

Stoppers Bulletin, 12/3/08). That same day, the Modesto Bee repeated that authorities

were looking for Ermoian, a “Modesto private investigator suspected of extortion and

racketeering.” Exhibit C, Modesto Bee, 12/3/08. In the article, the reporter notes that

Jacobson provided information about the task force’s efforts at locating Ermoian. At this

time, the superseding indictment was sealed and the charges against Ermoian were

unknown.

When the superseding indictment was unsealed, it was learned that Ermoian was


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1 Counsel for Ermoian does not believe that Ermoian’s alleged comments toHolloway constitute a crime as a matter of law and has filed a separate motion to dismissthe obstruction of justice count, which is the only charge against Ermoian.

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charged with only a single count of obstruction of justice involving allegations that he

relayed to defendant Robert Holloway general and vague information he learned

concerning a potential investigation.1 There are neither extortion nor racketeering charges

against Ermoian. And no basis to believe Ermoian was armed and dangerous. Indeed, the

Bee reporter questioned why “the charges against Ermoian in the unsealed indictment were

different from the charges the task force released to the public Tuesday” and noted that

Jacobson “declined to comment” and referred questions to federal prosecutors Exhibit D,

Modesto Bee, 12/5/08. The false report that Ermoian was wanted for extortion and

racketeering and was armed and dangerous unnecessarily made any potential contact with

law enforcement (or a citizen vigilante) a potentially lethal situation for Ermoian (and his

counsel). In fact, after learning of the sealed superseding indictment and arrest warrant,

Ermoian’s counsel advised government counsel that Ermoian would voluntarily turn

himself to the U.S. Marshal’s Office on December 5, and he did so without incident while

accompanied by counsel. At the magistrate calendar that same day, Ermoian entered a not

guilty plea and was released O/R. Clearly, there was nothing in Ermoian’s background or

in the circumstances of the offense that might lead one to believe he was a dangerous.

In addition to any motion to suppress wiretaps, counsel for Ermoian intends to file at

a later date a motion to dismiss based on this and other evidence indicating that

investigators were acting unlawfully in its investigation leading to a federal indictment

against Ermoian. At this stage, given the false statements about Ermoian’s charges to the

public and the additional perjury allegations by the ATF agent reported on a website, the

Court should order--in addition to the relief requested in Holloway’s motion for disclosure

--that the state and federal personnel files of Jacobson and all task force officers involved

in the wiretap investigation in this case be brought directly to the district court for review

of Brady and impeachment materials.


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For all these reasons and those previously stated, the Court should grant defendant

Robert Holloway’s motion for immediate disclosure of evidence and other relief and

should also grant Ermoian’s motion that the personnel files of Jacobson and all task force

officers involved in the wiretap investigation in this case be brought directly to the district

court for review of Brady and impeachment materials.

Respectfully submitted,

Dated: May 20, 2009

/s/ John Balazs JOHN BALAZS

Attorney for DefendantGARY ERMOIAN


Gary Ermoian's Motion Regarding Steve Jacobson's False Info in Flier and Modesto Bee

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