United States District Court, N.D. California
October 25, 2005.
UNITED STATES OF AMERICA, Plaintiff,
CHARLES JACKSON, Defendant.
The opinion of the court was delivered by: MARILYN PATEL, District Judge
MEMORANDUM & ORDER
On May 26, 2005, defendant Charles Jackson was convicted by a
federal jury of violating 18 U.S.C. section 1519, which prohibits
knowingly falsifying or covering up information in any document
with the intent to impede a federal investigation. Now before
this court is Jackson's motion for entry of a verdict of
acquittal, or in the alternative for a new trial, pursuant to
Federal Rules of Criminal Procedure 29 and 33. Having considered
the parties' arguments and for the reasons stated below, the
court enters the following memorandum and order.
Charles Jackson is a criminal investigator with the Federal
Protective Service ("FPS"). Jackson was assigned in February,
2003 to investigate whether criminal charges should be brought
against Jeffrey Petri, who was arrested by FPS officers on
February 15, 2003 following a high speed chase. During the course of the investigation, Jackson learned
that the arresting officers had lied about the events giving rise
to the chase, and that FPS did not in fact have jurisdiction to
make the arrest.
Specifically, one of the arresting officers, John Haire,
confessed to Jackson on February 20, 2003 that he had lied about
the location of Petri's vehicle prior to the initiation of the
high speed chase, and had also lied about the reasons for the
attempted stop. Jackson subsequently informed the United States
Attorney in charge of prosecuting Petri that the arrest was
unlawful. As a result, all charges against Petri were dropped on
February 20, 2003.
Jackson prepared a report of his investigation of the Petri
arrest on February 20, 2003. This report, which forms the basis
for the government's indictment of Jackson, includes notes about
the February 20, 2003 interview with Haire but omits any
information about Haire's confession. According to unrebutted
testimony at trial, Jackson later admitted on March 23, 2004 to
writing the report in a "deliberately vague" manner in order to
avoid disciplinary proceedings against Haire. Jackson also
admitted that he did not like internal investigations and did not
want to "burden another officer." Transcript of May 19, 2005 at
Jackson's principal argument in his defense at trial was that
FPS policies, which were specific to the region in which Jackson
is employed and which were in force in February, 2003, prohibited
investigators such as Jackson from taking statements from fellow
FPS officers who might be accused of criminal misconduct. Thus,
Jackson alleges, he was following local policy in omitting
details of the Haire confession from his report. Jackson sought
to establish the existence of the local policy through the
testimony of a single witness, FPS regional director Joseph
Loerzel, and called no other witnesses in support of his case.
The government attempted to undermine Loerzel's testimony in a
number of ways. First, in an attempt to establish Loerzel's bias
against the Office of Inspector General, the government asked
whether Loerzel was himself the subject of an ongoing federal
investigation. The court sustained an objection to this line of
questioning and instructed that the jury should "totally
disregard" the question related to the investigation and
"anything that Mr. Loerzel may have said immediately in response to it." Transcript of May 24, 2005 at 770:2-4. Second,
the government introduced expert testimony suggesting that
Loerzel acted outside his authority to the extent that he
authorized FPS employees to exclude confessions from their
reports. Third, the government argued that Jackson's failure to
put on additional witnesses to corroborate the existence of the
local policy further undermined Loerzel's credibility as a
witness. The government did not put on any evidence directly
contradicting the existence of the local policy.
In his motion for entry of acquittal or for a new trial,
Jackson argues that the government's failure to put on evidence
directly contradicting Loerzel's testimony entitles Jackson to
acquittal as a matter of law, or at a minimum a new trial.
Jackson also argues that each of the government's attacks on
Loerzel's testimony constitutes prejudicial prosecutorial
misconduct, requiring a new trial. First, Jackson complains that
the question about the alleged investigation of Loerzel damaged
Loerzel's credibility beyond repair despite the court's limiting
instruction. Second, Jackson argues that the government's expert
witness offered misleading testimony about past misconduct by
Loerzel, and that the government emphasized the misleading
testimony in its closing argument. Third, Jackson claims that the
government's suggestion that Jackson could not corroborate
Loerzel's testimony through other witnesses was a deliberate
misrepresentation, as well as a violation of the rule set forth
in Griffin v. California, 380 U.S. 609, reh'g denied,
381 U.S. 957 (1965), which forbids prosecutors from arguing that a
defendant's refusal to testify is an indication of guilt.
Finally, Jackson claims that the court committed two errors in
instructing the jury, both of which would justify a new trial.
First, Jackson argues that the court failed to instruct the jury
that Jackson must have known that the failure to document Haire's
confession was unlawful in order to be liable under section 1519.
Second, Jackson argues that the court improperly allowed the jury
to find liability based on Jackson's intent to impede the
investigation of Haire, rather than an intent to impede the
investigation of Petri. According to Jackson, the indictment only
refers to an intent to impede the Petri investigation. LEGAL STANDARD
I. Motion for Judgment of Acquittal
A court may enter a judgment of acquittal under Federal Rule of
Criminal Procedure 29(a) when the evidence is insufficient to
sustain a conviction. Fed.R.Crim.P. 29(a). The evidence is
insufficient when, viewing the record in the light most favorable
to the prosecution, no rational trier of fact could have found
that the government proved all the elements of the charged
offense beyond a reasonable doubt. United States v. Morgan,
238 F.3d 1180, 1186 (9th Cir.), cert. denied, 534 U.S. 863 (2001).
II. Motion for New Trial
A court may grant a new trial when "the interest of justice so
requires." Fed.R.Crim.Pro. 33(a); United States v. Mack,
362 F.3d 597, 599 (9th Cir. 2004). Prosecutorial misconduct can serve
as the basis for granting a new trial. United States v.
Peterson, 140 F.3d 819, 821 (9th Cir. 1998). In order to obtain
a new trial based on prosecutorial misconduct, defendant must
show that it is "more probable than not that the misconduct
materially affected the verdict." Id. (citing United States v.
Hinton, 31 F.3d 817, 824 (9th Cir. 1994), cert. denied,
513 U.S. 1100 (1995)).
I. Insufficiency of the Government's Case
Jackson's principal defense at trial was that he believed he
was acting lawfully in failing to record the details of Haire's
confession because local policies forbade him from doing so. The
same defense underlies most of Jackson's post-trial motions,
which allege, generally, that the government offered no proper
rebuttal or impeachment of the testimony of FPS regional director
Loerzel. Jackson attempted to establish the existence of the
local policy through Loerzel's testimony. Jackson's defense at
trial and his post-trial motions related to Loerzel's testimony
are predicated on the assumption that section 1519 requires proof
of consciousness of wrongdoing; i.e., proof that Jackson knew
that he was acting contrary to the law when he prepared his
Report of Investigation. The government contests this point, arguing that no specific
intent to violate the law is required.
Section 1519 provides, in relevant part, that "[w]hoever
knowingly . . . conceals, covers up, falsifies, or makes a
false entry in any record, document, or tangible object with
the intent to impede, obstruct, or influence the investigation
. . . of any matter within the jurisdiction of any department or
agency of the United States" shall be subject to criminal
penalties. 18 U.S.C. § 1519 (emphasis added). On its face,
section 1519 has three elements, two of which pertain to the
defendant's state of mind: (1) the act of concealment or covering
up in a record or document; (2) "knowingly" performing the
concealment or covering up; and (3) "inten[ding]" to impede a
federal investigation through the concealment or covering up.
Jackson argues that the word "knowingly" in section 1519
requires that the defendant be "conscious of wrongdoing," citing
Arthur Anderson LLP v. United States, 125 S. Ct. 2129 (2005).
Def.'s Opening Brief at 20. In Arthur Anderson, the Court
considered a now-repealed version of 18 U.S.C. section 1512(b)
(2000), which proscribed "knowingly . . . corruptly persuad[ing]
another person" with intent to cause the other person to withhold
documents from an official proceeding. Id. at 2134. The Court
noted that the statute required both "knowingly" and "corruptly"
persuading, and held that the word "corruptly" modified
"knowingly" to indicate a requirement of specific intent to
violate the law:
"[K]nowledge" and "knowingly" are normally associated
with awareness, understanding, or consciousness. . . .
"Corrupt" and "corruptly" are normally associated
with wrongful, immoral, depraved, or evil. . . .
Joining these meanings together here makes sense both
linguistically and in the statutory scheme. Only
persons conscious of wrongdoing can be said to
"knowingly . . . corruptly persuad[e]."
Id. at 2135-36 (internal citations omitted). The contrast with
the instant case could not be plainer: section 1519 contains the
word "knowingly" but does not contain the word "corruptly" and
thus imposes no requirement that the defendant be conscious of
wrongdoing. Jackson's subjective belief that his conduct was
lawful is irrelevant to his liability under section 1519.
Although Jackson's central argument regarding the relevance of
Loerzel's testimony is unavailing, the existence of the local policy could be relevant
in another way. If Jackson was in fact required by local policy
to omit Haire's confession from his report, then Jackson arguably
did not omit Haire's confession with the intent to interfere with
the investigation into Haire's conduct. Rather, Jackson might
claim that he omitted the confession only because he was
compelled to do so.
This alternate theory of relevance is inadequate as a basis for
a motion for a new trial for two reasons. First, Jackson has not
raised the alternate theory of relevance in his motion; instead,
he bases his entire argument of insufficient evidence on the
premise that section 1519 requires an intent to violate the law.
This court is reluctant to grant a new trial sua sponte based
on an argument that is absent from the parties' briefs.
Second, the government presented substantial evidence at trial
that Jackson did in fact intend to protect Haire through his
omission. FBI Special Agent Atkinson testified at length about
Jackson's March 23, 2004 confession, in which Jackson admitted to
deliberately omitting details of the Haire confession from his
report with the intention of protecting Haire from discipline.
See, e.g., Transcript of May 19, 2005 at 313:16-318:4. This
confession, without more, is enough to meet the government's
burden under section 1519. The government also presented evidence
that Jackson again withheld information about Haire's confession
in the context of a "shooting review" of the February 15, 2003
incident. Transcript of May 24, 2005 at 611:20-612:12. This
omission further supports a jury finding that Jackson intended to
Also, any intent that Jackson may have had to comply with local
policies is not inconsistent with an intent to protect Haire. The
fact that Jackson may have omitted the confession in part due to
a proper motive does not insulate him from liability resulting
from a second, improper motive. Given that the government put on
substantial evidence of Jackson's actual intent to impede the
investigation of Haire more than enough to permit a reasonable
jury to convict Jackson beyond a reasonable doubt this court
will not substitute its judgment for that of the jury. Jackson's
motions for entry of a verdict of acquittal and for a new trial
based on the sufficiency of the government's evidence are
therefore denied. II. Prosecutorial Misconduct
As already discussed, the three alleged instances of
prosecutorial misconduct relate to various attempts by the
government to undermine the credibility of Loerzel, Jackson's
sole witness. Jackson argues that, as a result of the misconduct,
the jury placed too little weight on Loerzel's testimony about
the local policy against documenting confessions.
In order to obtain a new trial, Jackson has the burden of
proving that it is "more probable than not that the misconduct
materially affected the verdict." Peterson, 140 F.3d at 821.
For reasons already discussed, it is difficult to see how
Loerzel's testimony, even if believed, would have led to a
different verdict in this case. Even if a local policy existed
that forbade Jackson from recording Haire's confession, the
government offered unrebutted testimony that Jackson knowingly
omitted details of the confession from his report, and, more
importantly, that Jackson hoped through his omission to prevent
disciplinary action against Haire. Section 1519 requires no more,
and Loerzel's testimony did not persuade the jury in this case
that Jackson lacked the requisite intent. Jackson's motion for a
new trial based on prosecutorial misconduct is therefore denied.
III. Jury Instructions
Finally, Jackson claims that the court committed two errors in
instructing the jury. First, Jackson argues that the court should
have instructed the jury that section 1519 requires the defendant
to know that his conduct was unlawful. As already discussed,
section 1519 contains no such requirement, and this argument has
Second, during deliberations, the jury asked if the phrase
"proper administration of a matter within the jurisdiction of an
agency of the United States" in section 1519 referred only to the
Petri investigation, or to "matters outside that specific case,
i.e., internal affairs investigation [sic] present, past, or
future?" Transcript of May 26, 2005 at 924:16-21. The court
responded that the jury could consider any investigation
conducted by an agency or department of the United States. Id.
at 932:3-8. Jackson argues that the court improperly instructed
the jury that it could consider Jackson's intent to impede the
Haire investigation; according to Jackson, the indictment in this
case is limited to Jackson's intent to impede the investigation of
Jackson bases his argument on the portion of the indictment
which alleges that the information Jackson "failed to disclose
[in his February 20, 2003 incident report] contradicted evidence
that knew he [sic] had been presented to the FPS, the United
States Attorney's Office of the Northern District of California,
and a Federal Magistrate-Judge in connection with Petri's arrest
and detention." Def.'s Opening Brief at 22. The court fails to
see how the cited passage supports Jackson's argument. The plain
meaning of the sentence cited by Jackson is that Jackson failed
to disclose, in his February 20, 2003 ROI, information that
Jackson had previously disclosed to the U.S. Attorney in
connection with the Petri investigation. This allegation has no
bearing on Jackson's reason for doing so namely, his intent to
protect Haire. Thus Jackson has made no coherent allegation of
error by the court in instructing the jury. The court therefore
denies Jackson's motion for a new trial.
For the forgoing reasons, the court DENIES defendant's motions
for judgment of acquittal and for a new trial.
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.