Motion to Dismiss Because of Outrageous Conduct by Jacobson

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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 L. ERMOIAN,

Defendant.

_______________________________

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

No. CR-F 08-224-OWW

DEFENDANT GARY ERMOIAN’SNOTICE OF MOTION AND MOTIONTO DISMISS

Date: June 14, 2010Time: 2:30 p.m.Hon. Oliver W. Wanger

PLEASE TAKE NOTICE that on June 14, 2010, at 2:30 p.m., in the Courtroom of

the Honorable U.S. District Judge Oliver W. Wanger, defendant Gary L. Ermoian, through

counsel John Balazs, will and does move this Court for an order dismissing count 16 of the

Second Superseding Indictment against him.

The grounds for this motion are the Due Process Clause of the Fifth Amendment and

the Court’s inherent supervisory powers over the administration of justice as set forth more

fully in the attached Memorandum in support of the motion. This motion is based on the

instant motion, Memorandum in support of the motion, the record in this case, and any

argument or evidence presented before or at the hearing on this motion.

Case 1:08-cr-00224-OWW Document 417 Filed 05/03/10 of 7

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Defendant Ermoian requests an evidentiary hearing on this motion.

DATED: May 3, 2010

Respectfully submitted,

/s/ John Balazs JOHN BALAZS


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


IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

GARY L. ERMOIAN,

Defendant.

_______________________________

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

No. CR-F 08-224-OWW

MEMORANDUM IN SUPPORT OFDEFENDANT GARY ERMOIAN’SMOTION TO DISMISS

Date: June 14, 2010Time: 2:30 p.m.Hon. Oliver W. Wanger

I. STATEMENT OF FACTS

In late June 2008, defendant Gary Ermoian was served with a grand jury subpoena

in this case. Thereafter, Mr. Ermoian contacted undersigned counsel. In a letter dated July

2, 2008, counsel advised the prosecutor in writing that Mr. Ermoian would invoke his Fifth

Amendment right against self-incrimination at his scheduled grand jury appearance on July

10, 2008. See Exhibit A(1). In a second letter dated July 7, 2008, counsel confirmed that

the prosecutor agreed to call off Mr. Ermoian’s grand jury appearance on July 10, 2008.

See Exhibit A(2).

On July 11, 2008, an Indictment was filed charging defendant Robert C. Holloway

and eight other defendants with various federal felony offenses. Mr. Ermoian was not

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charged in the Indictment.

On November 25, 2008, a Superseding Indictment was filed under seal, which, inter

alia, added a count 17, charging Mr. Ermoian and four other defendants with a conspiracy

to obstruct justice in violation of 18 U.S.C. § 1512(c) and (k).1 On or about December 2,

2008, Stanislaus County District Attorney investigator Steve Jacobson and other officers

went to arrest Mr. Ermoian on a federal warrant. Mr. Jacobson stopped and pulled over a

vehicle driven by Thomas Kortlang. Exhibit B, Declaration of Thomas Kortlang, at 1. He

was ordered to exit the vehicle and was surrounded by officers who had their guns drawn.

Id. When Mr. Kortlang said he didn’t know where Mr. Ermoian was, Mr. Jacobson insisted

on searching Mr. Kortlang’s home, which he shares with Mr. Ermoian. Id. Mr. Ermoian

was not home as Mr. Kortlang had told the officers. Id. Mr. Jacobson and other officers

intimidated Mr. Kortlang with verbal and physical threats. Mr. Jacobson told him that they

knew that Gary used to be a law enforcement officer and, as a result, if Gary were to reach

for a cell phone, they would have no choice but to shoot him because they may believe he

was reaching for a gun. Id. at 2. Mr. Kortlang perceived this as a real and serious threat on

Mr. Ermoian’s life.

Later that day, Mr. Jacobson went to look for Mr. Ermoian at his office. When his

sister Loretta Fernandes and an investigator at the office, Jack Able, told officers that they

had not seen Gary, Mr. Jacobson and other officers repeated their intimidating and

threatening conduct. See Exh. B., Declarations of Loretta Fernades, Jack Able, and Mr.

Kortlang. Mr. Jacobson told Ms. Fernandes that if someone stopped Mr. Ermoian and he

reached for something, they might think it was a gun and shoot him. Id.

On December 2 or 3, 2008, the Modesto Police Department disseminated on their

website a Crime Stoppers “Most Wanted Bulletin” falsely warning that “ERMOIAN is

wanted by Federal Authorities on charges of Extortion and Racketeering Federal Statute

18-United States Code 1962" and that he “should be considered Armed/Dangerous.”

1 This count was changed to count 16 in the currently-pending Second SupersedingIndictment filed May 28, 2009.

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Exhibit C(1). This was a lie. Mr. Ermoian was charged in the subsequently unsealed

indictment with only one count of a non-violent, obstruction of justice charge for

purportedly relaying information he received as an investigator from two sources to an

attorney and their client. A Modesto Bee story repeated the allegations that an arrest

warrant had been issued for Mr. Ermoian’s arrest and he was suspected of “extortion and

racketeering.” Exhibit C(2), “Warrant Expands Biker Probe,” Modesto Bee, 12/3/2008,

In the morning of December 5, 2008, Mr. Ermoian turned himself in with counsel to

the Fresno federal courthouse and he was released O/R by U.S. Magistrate Judge Gary

Austin. When the charges were unsealed and given to counsel, Mr. Ermoian learned for

the first time he was charged only with a single count of a conspiracy to obstruct justice.

The Modesto Bee that night issued an update, quoting counsel that, “Gary surrendered

himself to the U.S. Marshals office early . . . as early as practicable after we learned of the

arrest warrant, which had been sealed.” Exhibit C(3), “PI Gives Self Up In Road Dog

Case, 12/5/08. The story noted that “[i]t was unclear why the charges against Ermoian in

the unsealed indictment were different from the charges the task force members released to

the public Tuesday.” Id. Mr. Jacobson “declined to comment about the difference” and

referred questions to federal prosecutors, who did not return the reporter’s calls and emails.

Id.

II. ARGUMENT

THE COURT MUST DISMISS COUNT 16 AGAINST DEFENDANT GARY ERMOIANBECAUSE THE GOVERNMENT’S PROSECUTION CONSTITUTES VINDICTIVEPROSECUTION AND THE OFFICERS’ OUTRAGEOUS GOVERNMENTMISCONDUCT VIOLATES FUNDAMENTAL PRINCIPLES OF FAIR PLAY ANDDUE PROCESS OF LAW.

A district court may dismiss an indictment on the ground of outrageous government

misconduct if the conduct amounts to a due process violation. United States v. Barrera-

Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991). “To violate due process, governmental

conduct must be ‘so shocking and so outrageous as to violate the universal sense of

justice.’” Id. (quoting United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991); United

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States v. Bagnariol, 665 F.2d 877, 883 (9th Cir. 1981) (per curiam). Although often raised

in the context of an entrapment defense, even where there is no entrapment a defendant

“may still invoke the outrageous government conduct defense if he was subjected to police

conduct repugnant to the American system of criminal justice.” United States v. Lomas,

706 F.2d 886, 890 (9th Cir. 1983). The Due Process Clause also protects defendants from

vindictive prosecution based on their exercise of their constitutional or statutory rights.

United States v. Goodwin, 457 U.S. 368, 372 (1982).

Even if government misconduct does not rise to a due process violation, the court

may in some circumstances dismiss an indictment under its supervisory powers. Barrera-

Moreno, 951 F.2d at 1091. The court’s exercise of its supervisory powers is warranted for

three reasons: “to remedy a constitutional or statutory violation; to protect judicial

integrity by ensuring that a conviction rests on appropriate considerations validly before a

jury; or to deter future illegal conduct.” Id.

Here, the conduct of Mr. Jacobson and other officers is so shocking and outrageous

as to require dismissal of the single count against Mr. Ermoian for violating principles of

due process and under the Court’s supervisory powers. By falsely advising the press and

public that Mr. Ermoian was wanted for extortion and racketeering, Mr. Jacobson or other

task force members unnecessarily and wantonly jeopardized the life and safety of Mr.

Ermoian. As Mr. Jacobson had threatened Mr. Ermoian’s sister and others, had law

enforcement officers (or even the public) stopped Mr. Ermoian after falsely believing he

was charged with “extortion and racketeering” and was armed and dangerous, they might

have mistakenly believed that potentially deadly force was necessary to arrest him.2

Nothing could have been further from the truth. Rather, Mr. Ermoian does not carry a gun.

His counsel had advised government counsel that Mr. Ermoian would promptly turn

himself in to the U.S. Marshal’s office after learning of the warrant, which he did. Based

2 Apparently, this is not the only time Mr. Jacobson has demonstrated threateningor assaultive behavior. On February 26, 2010, Mr. Jacobson assaulted attorney FrankCarson in the hallway of the Stanislaus County Courthouse. See Exhibit D.

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on Mr. Ermoian’s background, lack of criminal history, and the nature of the offense, the

U.S. Magistrate Judge followed the pretrial service officer’s recommendation in releasing

Mr. Ermoian O/R without supervision at his first court appearance. This shows that Mr.

Ermoian should never have been seen as any danger by law enforcement or the public.

Moreover, the conduct of Mr. Jacobson and other officers also indicates that Mr.

Ermoian was vindictively charged because he had exercised his Fifth Amendment right to

remain silent rather than give testimony to the federal grand jury who had been

investigating this case. The sole charge against him is based on alleged conduct in

September 2007. But Mr. Ermoian was not charged in the initial indictment on July 11,

2008. There were no new allegations against Mr. Ermoian after the first indictment. It was

only after he had exercised his Fifth Amendment right to remain silent and chose not be a

government witness that he was charged in this case. It violates due process for an

individual to be prosecuted in retaliation for his exercise of his constitutional rights. Thus,

the Court must dismiss Count 16 against Mr. Ermoian under the Due Process Clause or

under its supervisory powers.

III. CONCLUSION

For all these reasons, the Court must dismiss count 16 of the Second Superseding

Indictment against defendant Gary Ermoian. Mr. Ermoian requests an evidentiary hearing

on this motion.

DATED: May 3, 2010Respectfully submitted,

/s/ John Balazs JOHN BALAZS


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Motion to Dismiss Because of Outrageous Conduct by Jacobson

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