UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
October 26, 2005
UNITED STATES OF AMERICA, PLAINTIFF,
CHARLES JACKSON, DEFENDANT.
The opinion of the court was delivered by: Marilyn Hall Patel United States District Court Judge Northern District of California
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 314:21--315:20.
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.
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 protect Haire.
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 no merit.
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 Petri.
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.