The opinion of the court was delivered by: Marilyn Hall Patel United States District Court Judge Northern District of California
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 ...