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United States of America v. Gary L. Ermoian


March 30, 2011


The opinion of the court was delivered by: Oliver W. Wanger U.S. District Judge


This matter came on for hearing on February 28, 2011. Defendant Gary L. Ermoian moved the court for a Judgment for Acquittal or, in the alternative, for a New Trial. For the following reasons, defendant's motions are hereby DENIED.

The defendant was convicted at trial by jury on August 13, 2010 of one count of Conspiracy to Obstruct Justice, in violation of Title 18, United States Code, sections 1512(c)(2) and (k).


The standard to be applied in reviewing the sufficiency of evidence in a Motion for Judgment of Acquittal pursuant to Federal Rule of Criminal Procedure Rule 29 is whether "after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)(emphasis in original); United States v. Castaneda, 16 F.3d 1504, 1510-11 (9th Cir. 1994). In conducting this review, the Court is powerless to question the witnesses' credibility, and must presume that the trier of fact will resolve any conflicting inferences in favor of the prosecution. United States v. Johnson, 229 F.3d 891, 894 (9th Cir. 2000) (citing United States v. Croft, 124 F.3d 1109, 1125 (9th Cir. 1997) and Wright v. West, 505 U.S. 277, 296-97, 112 S. Ct. 2482 (1992) (plurality opinion)). The reviewing court must permit a jury to "draw reasonable inferences from proven facts" and must assume that the jury would make all inferences which support a guilty verdict. United States v. Garza, 980 F.2d 546, 552 (9th Cir. 1992).

The defendant moves for Judgment of Acquittal on three grounds. The court will address each of these grounds in the order presented.

A. FBI Investigation is not an "Official Proceeding"

Defendant's first argument is that an FBI investigation is not an "official proceeding" within the meaning of 18 U.S.C. § 1515(a).

Title 18, United States Code, section 1512(c)(2) states:

(c) Whoever corruptly -(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, [is guilty of a felony].

Defendant's argument is that, under 18 U.S.C. § 1512(c)(2), as defined in 18 U.S.C. § 1515(a)(1)(C), an FBI investigation is not an "official proceeding". Section 1515(a)(1)(C) states:

(a) As used in sections 1512 and 1513 of this title and in this section -

(1) the term "official proceeding" means -

(C) a proceeding before a Federal Government agency which is authorized by law.

The defendant cites several cases that support his view, however, these cases can be distinguished and the court concludes that an FBI investigation is an "official proceeding" within the meaning of the statute.

1. Legislative History

A review of the legislative history of 18 U.S.C. § 1512 reveals that the term "official proceeding" is to be interpreted broadly, to encompass both criminal investigations and court proceedings.

Current section 1512,and the use of the term "official proceeding", has its genesis in the Victim and Witness Protection Act of 1982 (VWPA). The 1982 VWPA had as its purpose the strengthening of existing legal protections for victims and witnesses of federal crimes. S.Rep. 97-532; 1982 U.S.C.C.A.N. 2512, 2515.

As noted by the Senate Judiciary Committee:

The problem of victim and witness intimidation which this Title addresses was brought out clearly in two days of public hearings held in 1979 by the American Bar Association Criminal Justice Section's Victims Committee. Under current law there is ambiguity about who would constitute a "witness". Generally, court decisions define "witness" to mean a person "expected" to testify in a court proceeding. Therefore, it is questionable whether Title 18 as presently written would protect a witness who is able to provide information about a crime but who is not necessarily expected to testify because the testimony would either constitute hearsay (often the case with informants), would be privileged, or would otherwise be inadmissible The scope of the offense should not be limited by concerns . about the status of the victim as a person who has testified or will be able to testify in court. Rather, the offense should be addressed to punishing the acts of intimidating or injuring a person because of his knowledge about the commission of a crime. Id., at 2521 (emphasis added).

The Judiciary Committee went on to explain the expansive interpretation that was to be given to the term "official proceeding" under the statute:

The term "official proceeding" is defined broadly in section 1514 [now current section 1515] where definition is also given to the term "law enforcement officer". Id., at 2523.

The obstruction of justice statute is an outgrowth of Congressional recognition of the variety of corrupt methods by which the proper administration of justice may be impeded or thwarted, a variety limited only by the imagination of the criminally inclined. In the Committee's view, this observation leads to the conclusion that the purpose of preventing an obstruction or miscarriage of justice cannot be fully carried out by simple enumeration of commonly prosecuted obstruction offenses. There must also be protection against the rare type of conduct that is the product of the inventive criminal mind and which also thwarts justice. Some examples of such conduct, actually prosecuted under current residual clauses, which would probably not be covered in this series without a residual offense clause, are as follows:

(IV) A conspiracy to cover up the Watergate burglary and its aftermath by having the Central Intelligence Agency seek to interfere with an ongoing FBI investigation of the burglary.

In order to reach such cases . . . the Committee determined to include subsection (a)(3)[now section (a)(2)]. [T]he analysis should be functional in nature to cover conduct the function of which is to tamper with a witness, victim, or informant in order to frustrate the ends of justice.

Id., at 2524 (emphasis added).

The Judiciary Committee further commented on the expansive interpretation to be given to "official proceeding" in addressing that the official proceeding need not be in progress or pending at the time:

The Committee felt that this increases the scope of the section by expanding the galaxy of witnesses and victims the protections of its language is meant to embrace. Intimidation offenses are particularly insidious and do violence to traditional notions of justice because no one can be convicted of a crime which is not reported. Subsection (d)(1), among other things, specifically reaches intimidation offenses committed before a crime is reported to the appropriate authorities. Id., at 2525 (emphasis added).

Title 18, United States Code, section 1513 is entitled "Retaliating Against a Witness, Victim or Informant". It utilizes the same definition of "official proceeding" used under section 1512. In addressing amendments to section 1513 that would broaden protections of victims and witnesses of crimes, the Senate Judiciary Committee considering the 1982 VWPA noted that "current law does not clearly proscribe retaliation against friends, relatives, or associates of an individual who has provided information concerning criminal investigations. Id., at 2526.

In further addressing the definition of "official proceeding" contained in sections 1512 and 1513, the Committee stated as follows:

The Committee has also substituted the term "official proceeding", which is defined in section 1514 [now 1515] for the current law term "legal proceedings". This change is in no way intended to limit the reach of the current language. In particular, the Committee intends that the statute remain applicable in civil and administrative proceedings, where warranted, as well as criminal proceedings. The term "official proceeding" is intended to achieve this result. In addition the word "involved" is used instead of the more limited word "instituted" to make prior to formal charges being brought it clear that relocation is possible against a specific defendant. The definition of "official proceeding" would indicate the same result. Id., at 2530 (emphasis added).

In 1997, the House Judiciary Committee considered H.R. 2181 -The Witness Protection and Interstate Relocation Act of 1997. In addressing the background and the need for the legislation, the Committee noted that prosecutors and police confront two principal types of witness intimidation - overt and implicit. 1997 WL 583228, *2. The Committee sought to strengthen protections for victims and witnesses of crimes so as to increase cooperation during criminal investigations. Id. Toward that end, the Committee added subsection

(j) to section 1512, which established enhanced penalties for obstruction of justice offenses involving victims, witnesses, and informants by adding a conspiracy component to obstruction of justice under section 1512. Insofar that "official proceeding" was the definition applicable to section 1512, this is a further indication of legislative intent that an "official proceeding" encompass a criminal investigation.

Therefore, the legislative history behind section 1512 and the definition of "official proceeding" reveals that it was to be given an expansive reading in order to effectuate the intent behind the statute - to protect victims, witnesses and others from threats and intimidation during criminal investigations and prosecutions.

2. An FBI Investigation is an "Official Proceeding" The current version of Section 1512(c)(2) became effective July 30, 2002, as part of the Sarbanes-Oxley Act of 2002. See, Pub.L.No. 107-204, 116 Stat. 745 (2002). Section 1512(c) was one of the measured responses by Congress to improve the accuracy and reliability of corporate disclosures by penalizing those who obstruct justice by somehow impairing the integrity or availability of records, documents, and other tangible objects. Id. Section 1512(c)(1) lists specific conduct that is prohibited under this subsection, while 1512(c)(2) is intended to account for unenumerated conduct that violates the subsection. Evidence of the expansive nature of the term is the precedential authority that defined "official proceeding" in section 1512 prior to the 2002 amendments. See, S.Rep. 97-532; 1982 U.S.C.C.A.N. 2512; United States v. Gonzalez, 922 F.2d 1044, 1055-56 (2d Cir. 1991); United States v. Kelley, 36 F.3d 1118, 1128 (D.C. Cir. 1994). Although the text of section 1512 changed due to the 2002 amendments, there is no indication that Congress intended to alter or change the judicial or past legislative interpretation of "official proceeding". Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 185 (1994)("When Congress reenacts statutory language that has been given a consistent judicial construction, we often adhere to that construction in interpreting the reenacted statutory language.").

Section 1512(g)(1) states that "no state of mind need be proved with respect to the circumstance that the official proceeding . . . before a government agency is before . . . a Federal government agency, and section 1512(g)(2) states that "no state of mind need be proved that the . . . law enforcement officer is an officer or employee of the Federal government." Thus, section 1512 specifically contemplates criminal law enforcement investigations, utilizing law enforcement officers, in addition to more formal court and grand jury proceedings.

"Official proceeding" is broadly defined as including investigatory proceedings by government agencies to effectuate Congress' purpose in passing it. United States v. Gonzalez, 922 F.2d at 1055 (2d Cir. 1991), cert. denied, 502 U.S. 1014 (1991). Contrary to defendant's argument, the Second Circuit in Gonzalez addressed the definition of "official proceeding" as referred to in section 1512(a)(1)(A)(whose definition is contained in the same section at issue in this case - section 1515(a)), and held that the term "official proceeding" applies to those acts which occur during the investigatory stage. Id., at 1055-56. In so doing, the Second Circuit stated that it read the term "official proceeding" broadly in order to effect Congress' intent on passing it, and thus applied the term to an agency criminal investigation. Id.

The defendant cites United States v. Dunn, 434 F.Supp.2d 1203 (M.D. Ga. 2006), a district court case which held that an ATF investigation, standing alone, is not an "official proceeding" under the obstruction of justice statute. Id., at 1209. However, the court did note that Dunn would be guilty of obstructing justice if a prosecution in federal court was foreseeable.

For a prosecution to be foreseeable, the person must have an inkling that he is the target of an investigation. Id., at 1210. In this case, the record is clear that Bob Holloway and defendant Ermoian both knew that he was under federal investigation. The phone calls themselves reveal Bob Holloway and the defendant lamenting the length of the investigation and the identity of the federal agents.

The defendant also cites United States v. Gabriel, 125 F.3d 89, 105 fn.13 (2d Cir. 1997)("the jury also reasonably could have concluded that Gabriel's sole intent was to interfere with the FBI investigation, and if the jury had so concluded, it would have been compelled to find Gabriel innocent."). This language was dicta contained in a footnote, and the issue was not specifically addressed by the court. Indeed, the court did not even cite to its earlier opinion in Gonzalez, discussed above, which held that "official proceeding" applies to acts committed during the investigation phase.

The defendant states that United States v. Kelley, 36 F.3d 1118 (D.C. Cir. 1994), cited by the government in an earlier brief, is actually helpful to him because its finding that the U.S. Agency for International Development (AID) had subpoena powers and the power to administer oaths, thus lending an air of formality that supported a finding that processes before it were "proceedings" under section 1505. However, that determination was made by the court in light of its finding that there was a "proceeding" under section 1505.

When specifically addressing the issue of whether the investigation by AID was an "official proceeding" under section 1512, the District of Columbia circuit held that it was, without qualifying that it reached its conclusion because of AID's subpoena powers and its powers to administer oaths. Id., at 1128.*fn1

Under defendant's interpretation of Kelley, the coverage of section 1512 would turn on an inquiry into an agency's own regulations concerning the use of its subpoena powers. There is no reason to believe that Congress intended to require such an agency-by-agency inquiry, particularly in light of the legislative history of the statute.

Nonetheless, even within the restrictive definition of Kelley, as an arm of the DOJ, an FBI criminal investigation is an "official proceeding" under section 1512.

The defendant also cites United States v. Ramos, 537 F.3d 439 (5th Cir. 2008), in support of his position that an FBI investigation is not an "official proceeding" under section 1512. Ramos involved an internal Border Patrol investigation, and the court held that Congress did not intend to "criminalize an omission that interferes with a preliminary, routine, intra-departmental inquiry of the type here." Id., at 464. The investigation at issue in this case was not a "preliminary, routine, intra-departmental inquiry", but a full criminal investigation. Furthermore, the court noted that it specifically did not address whether an agency investigation could ever constitute an "official proceeding" under section 1512, and limited its holding to the specific facts before it. Id., at fn. 18.

The defendant distinguishes United States v. Cross, 258 F.Supp.2d 432 (E.D.Va. 2003), claiming that the "official proceeding" at issue was the federal grand jury or criminal case proceedings, not the preceding DEA investigation. However, this interpretation is in direct conflict with the language of the case.

As stated in Cross, the government argued that it was the federal investigation of a co-defendant, which was underway prior to the assault on the victim, which satisfied the criteria for federal jurisdiction under section 1512. Id., at 433. The court agreed, concluding "that Agent Parker interviewed Lewis on July 12, 2002, prior to the alleged assault of Lewis by Cross on August 10, 2002, and that a DEA investigation against Goodman was underway at the time of the assault." Id., at 435 (emphasis added). "Therefore, as Lewis was a witness in a federal investigation, which led to federal charges, the criteria are met for the charge of witness tampering under 18 U.S.C. § 1512(b)(1)." Id. (emphasis added).

The defendant also distinguishes United States v. Plaskett, 2008 WL 3833838 (D. Virgin Islands)(unpublished), aff'd on other grounds, 355 Fed.Appx. 639 (3rd Cir. Virgin Islands). In Plaskett, the district court directly addressed the issue of "official proceeding" in the body of its opinion:

Viewed in the light most favorable to the government, the evidence also shows that Plaskett knew at the time of those meetings that a federal investigation and grand jury proceeding were likely forthcoming. A rational jury could find beyond a reasonable doubt that Plaskett knowingly attempted to corruptly impede or obstruct an official proceeding in December, 2004, and in January, 2005.

Id., at *5. Footnote 2 to the Plaskett decision further illuminates the issue, i.e., "[T]o the extent Plaskett argues that the federal agency investigation does not constitute an official proceeding under Section 1512(c)(2), the Court is unpersuaded. Indeed, the plain language of the statute forecloses Plaskett's interpretation."

A case with facts similar to those in the instant case is United States v. Townsend, __F.3d ___, 2011 WL 102765 (11th Cir. 2011). In Townsend, the defendant, a corrections officer, was aware of a joint Miami-Dade Police Department/DEA investigation into a coconspirator's marijuana enterprise, and she spoke to her co-conspirator on the phone just before search warrants were executed to warn him that search warrants were about to be executed on his home and grow-houses. In light of this conduct, the defendant was charged with obstruction of justice, pursuant to 1512(c)(2), along with other crimes.

The Eleventh Circuit held that there was sufficient evidence from which the jury could find that the defendant obstructed justice by impeding an official proceeding - the DEA/Miami-Dade Police narcotics investigation. Implicit in its holding, then, was its conclusion that sufficient evidence existed that a reasonable jury could find beyond a reasonable doubt that the narcotics investigation was an official proceeding. Id.

For the foregoing reasons, the FBI investigation at issue is an "official proceeding" under section 1512(c)(2), and defendant's argument must fail.

B. The Defendant Acted "Corruptly"

The defendant's next argument is that the evidence was insufficient for any rational juror to find beyond a reasonable doubt that the defendant "corruptly" obstructed the FBI's investigation.

As the jury was instructed, to act "corruptly" meant to act for a knowingly wrongful or evil purpose. Jury Instruction No. 20.

At 8:48 a.m. on September 20, 2007, co-defendant Dave Swanson, an officer with the Stanislaus County Sheriff's Department, called the defendant and told him that law enforcement had been at Holloway's "Burn-Out Party" taking pictures; to tell Bob Holloway to "watch his back", and that there may be search warrants about to be executed by law enforcement at Holloway's business - Road Dog Cycle (RDC).

At 9:13 a.m., the defendant called Holloway and told him he had received a call from his "source" (Swanson); that law enforcement had been taking pictures at a gathering at RDC, and that Holloway needed to "watch his back". He further informed Holloway that the information came from "someone in the court system" and that law enforcement may be trying to "get orders from the judge." Gov't Ex. 3a-1. Notably, the defendant told Holloway that "actually there's something may be going on right at this moment, so you may take a look around the shop to see if you see anything, so, alright"? Id.

A jury could reasonably have concluded that this comment was the defendant's attempt at telling Holloway to get rid of any incriminating or illegal evidence at RDC.

This interpretation is supported by the fact that the very next call made by Holloway was to his son, Brent Holloway, at 9:26 a.m. that morning. During that call, Holloway asked Brent whether they had anything "questionable" at the shop, at which time they had a conversation about an FXR frame and whether it was safely stored in the alley behind RDC. Gov't Ex. 3c-1.

Later that day, at 12:41 p.m., Holloway called the defendant to compare notes about the information Holloway received directly from defendant Steve Johnson and what the defendant received from his "source" in the courthouse - Dave Swanson. They spoke of possible law enforcement action being contemplated against Holloway. One hour later, Holloway called the defendant as the defendant was going to his office to tell him that he was circling RDC to make sure "they're not assembling the troops." Gov't Ex. 3f-1.

The next significant conversation involved the defendant, along with Steve Johnson, calling Holloway from the defendant's office at 1:22 p.m. Gov't Ex. 3h-1. During this conversation, Steve Johnson relayed to the defendant, to relay to Holloway, the description of what Johnson believed to be law enforcement surveillance vehicles near RDC at the time. Id.

The defendant and Holloway next talked at 1:51 p.m., wherein they evaluated and weighed the credibility of the information the defendant received versus the information Holloway received from Johnson, and both concluded that the information the defendant received from his "law enforcement source" was reliable. Gov't Ex. 3i-1.

The next day, September 21, 2007, the defendant and Holloway had another phone conversation at 11:46 a.m. Again, they compared the reliability and credibility of their respective sources, and the defendant stressed that his source (Swanson) is "legit" and when they (Holloway and Ermoian) talk, "you'll know why." Gov't Ex. 4a-1. Five days later, the defendant described Swanson as "someone I could trust", whereupon Holloway agreed that he is "a good guy - one of the good old boys". Gov't Ex. 5a-1.

Notably, throughout all of these conversations, the defendant never once mentions the name of his source on the telephone; indeed, he specifically told Holloway that "when you and I get together I'll tell you where I got the information from and you'll understand." Gov't Ex. 3e-1. The jury could have found that this secrecy is necessitated because the defendant knew he had received the information from a corrupt law enforcement source, and that the information was about a pending or contemplated law enforcement action. This, combined with defendant's instruction to Holloway to destroy or hide evidence in contemplation of an anticipated search warrant (and defendant's knowledge that Holloway would follow his instructions), is sufficient for the trier of fact to find corrupt intent on the part of the defendant.

C. Multiple Conspiracies

The defendant next argues that he is entitled to a judgment of acquittal because the government proved either multiple conspiracies or one different than that charged.

"The issue of whether a single conspiracy has been proved is a question of the sufficiency of the evidence." United States v. Duran, 189 F.3d 1071, 1078 (9th Cir. 1999). "There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id.; see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). "In order to establish sufficient evidence, 'the prosecution need not affirmatively rule out every hypothesis except that of guilt."' Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir. 2000) (citing Wright v. West, 505 U.S. 277, 296 (1992)) (plurality opinion).

The defendant asserts that, because there were separate occurrences that were proved at trial, i.e., the "Swanson" information and the "Johnson" information, there were separate conspiracies rather than the one conspiracy alleged in Count 16. The defendant further argues that since co-defendant Swanson was acquitted, the jury must have convicted defendant Ermoian and co-defendant Johnson based on the "second" separate conspiracy involving the information given to Ermoian by co-defendant Johnson.

"A conspiracy is an agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying offense." United States v. Bibbero, 749 F.2d 581, 587 (9th Cir. 1984). The test for whether a single conspiracy existed, as opposed to multiple conspiracies "is whether there was one overall agreement to perform various functions to achieve the objectives of the conspiracy." Id. The evidence must show that each of the defendants was involved. Id. A formal agreement is not necessary and a single conspiracy may involve several subagreements or subgroups of conspirators. Id. "[T]he joinder [of a conspiracy] by a new member does not create a new conspiracy, does not change the status of the other conspirators... a withdrawal [of a member] neither creates a new conspiracy, nor changes the status of the remaining members." Marino v. United States, 91 F.2d 691, 696 (9th Cir. 1937). "A single overall agreement need not be manifested by continuous activity. There may be a suspension of activities which does not divide a single conspiracy into more than one." United States v. Little, 753 F.2d 1420, 1448 (9th Cir. 1984).

A factors analysis is used to distinguish single from multiple conspiracies. Bibbero, 749 F.2d at 587, citing United States v. Tille, 729 F.2d 615, 621 (9th Cir. 1984). "The relevant factors include the nature of the scheme; the identity of the participants; the quality, frequency, and duration of each conspirator's transactions; and the commonality of time and goals." Id. There is no requirement that every member of the conspiracy know every other member nor be aware of all acts committed in furtherance of the conspiracy. United States v. Taren-Palma, 997 F.2d 525, 530 (9th Cir. 1993), overruled on other grounds, United States v. Shabani, 513 U.S. 10 (1994). "The evidence need not exclude every hypothesis other than a single conspiracy exists." United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir. 1987).

"A variance occurs when the proof introduced at trial differs materially from the facts alleged in the indictment." United States v. Antonakeas, 255 F.3d 714, 722 (9th Cir. 2001). A variance is reversible error only if it has affected substantial rights and is not fatal unless defendant Ermoian could not have anticipated from the indictment what evidence would be presented at trial. United States v. Antonakeas, Id., quoting, 3 Wright, Federal Practice and Procedure, Criminal §516 (2d ed. 1982).

Prejudice may arise in three ways: (1) inadequate opportunity to prepare a defense and exposure to unanticipated evidence at trial; (2) deprivation of the right to be tried only on charges presented in an indictment returned by a grand jury; and (3) exposure to prejudicial spill-over. United States v. Morse, 785 F.2d 771, 775 (9th Cir. 1986). Variance is not prejudicial if the indictment is sufficiently explicit to inform defendant Ermoian of the charges against him. United States v. LeMaux, 994 F.2d 684, 690 (9th Cir. 1993).

The evidence at trial was sufficient for a jury to find a single conspiracy whereby co-defendant Bob Holloway was provided information from various sources, including co-defendant Swanson and co-defendant Johnson, all funneled though defendant Ermoian, for the purpose of corruptly frustrating and impeding the investigation into Road Dog Cycle conducted by the FBI.

Numerous calls took place between Holloway and defendant Ermoian, as well as Holloway and co-defendant Johnson, where information was passed on and its importance discussed as well as what course of action to take in light of the information. In fact, at one point, co-defendant Johnson was in defendant Ermoian's office when this information was being passed to Bob Holloway. Gov't Exh 3h-1a. The trier of fact could reasonably have determined there was an agreement between the parties to pass on the information gathered to Bob Holloway, often using defendant Ermoian as a conduit, so Holloway could do whatever needed to be done to take counter measures and corruptly impede the investigation that was taking place.

The conspiracy involved the same general scheme, the same key actors, the same methods of accomplishing the transaction, and the same objective. Thus, the evidence was sufficient to establish one conspiracy consisting of one overall agreement between defendant Ermoian, and co-defendants Johnson and Bob Holloway to collect and disseminate information to corruptly impede the investigation that was taking place.


A district court's power to grant a motion for new trial is much broader than its power to grant a motion for judgment of acquittal. United States v. Alston, 974 F.2d 1206, 1210 (9th Cir. 1992).

The defendant moves for a new trial based on five specific reasons. The court will address each of the reasons below.

1. FBI Investigation Is Not An "Official Proceeding" This argument is addressed above and will not be repeated here. The court adopts its findings and conclusions regarding this issue reached in its analysis of this issue in response to defendant's Motion for Judgment of Acquittal.

2. Jury Instructions

The defendant argues that the jury instructions were incomplete because the court did not instruct the jury that "the providing of lawful, bona fide, legal representation services in connection with or anticipation of an official proceeding" was a defense to obstruction of justice count. 18 U.S.C. § 1515(c).*fn2

Section 1515(c) has be held to provide a complete defense to obstruction of justice. United States v. Kellington, 217 F.3d 1084, 1098 (9th Cir. 2000).

When there is no request for a particular jury instruction, the Ninth Circuit reviews only for plain error. United States v. Bear, 439 F.3d 565, 568 (9th Cir. 2006); United States v. MonzonValenzuela, 186 F.3d 1181, 1183 (9th Cir. 1999).

To reverse a conviction under this standard, there must be (1) error, (2) that is "plain", and (3) that affects substantial rights. Johnson v. United States, 520 U.S. 461, 466-67 (1997). If these conditions are met, the court may exercise its discretion to reverse, but "only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. at 467.

Assuming, arguendo, that the failure to instruct on the defense of lawful representation under section 1515(c) was error, and such error was "plain", the error did not affect Ermoian's substantial rights. The defendant was permitted to present testimony, including expert testimony, and fully argued this defense throughout the trial. Counsel's entire closing argument consisted mainly of the defense of lawful representation and that the defendant had no "corrupt" intent.

Furthermore, any such instruction under section 1515(c) was adequately covered in other instructions. A trial court is not required to give a particular instruction regarding the defense's theory of the case so long as the court's instructions adequately cover the subject. United States v. Sayakhom, 186 F.3d 928, 940 (9th Cir. 1999), United States v. Zuniga, 6 F.3d 569, 571 (9th Cir. 1993). In this case, the instructions adequately covered the mental state required by the defendant that is addressed under section 1515(c).

The jury instruction for Obstruction of Justice was as follows:

The object of the alleged conspiracy as set forth in Count Sixteen is to Obstruct Justice, under United States law.

The elements of the crime of Obstruction of Justice are: First, that a defendant knowingly;

Second, corruptly obstructed, corruptly influenced, or corruptly impeded, or attempted to do so;

Third, an official proceeding.

Jury Instruction No. 18 (emphasis added). Jury Instruction No. 19 defined "knowingly" as follows:

An act is done knowingly if a defendant is aware of the act and does not act through ignorance, mistake or accident. The government is not required to prove that a defendant knew that his acts were unlawful. You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether a defendant acted knowingly.

Finally, Jury Instruction No. 20 defined "corruptly" as follows:

The term "corruptly" means to act for a knowingly wrongful or evil purpose in wrongfully obstructing, influencing or impeding an official proceeding.

When compared to the defense set forth in section 1515(c), it is apparent that the jury instructions adequately covered the defense theory, i.e., that the defendant had no "corrupt" intent in relaying information to Bob Holloway and that he was acting in his capacity as a bona fide, lawful legal representative of Mr. Holloway.

Defendant relies on United States v. Kellington to state that the lack of such instruction requires reversal of his conviction. In Kellington, not only did the court fail to give a 1515(c) instruction, but the trial court affirmatively thwarted defendant's counsel's attempts to present a defense based on legal, bona fide representation by instructing the jury that the defendant's experts' testimony on the ethical obligations of the defendant was "merely background", and further prevented defense counsel from arguing the importance of such testimony at closing argument. Kellington, supra, at 1100-1101.

In this case, counsel was given every opportunity to argue and present evidence on his bona fide legal representation defense. No effort was made by the government or the court to thwart such a defense. Thus, any error did not "seriously affect the fairness, integrity, or public reputation of judicial proceedings", and the defendant's argument must fail.

The defendant also makes a corollary argument that his failure to request a jury instruction under section 1515(c) was ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). Counsel cannot argue ineffective assistance of counsel as part of a motion of new trial, but such claims can be raised as part of a habeas corpus petition. United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000); United States v. Hanoum, 33 F.3d 1128, 1131 (9th Cir. 1994).

3. Evidence Preponderates Against a Guilty Verdict The court adopts its findings and conclusions set forth under its analysis of multiple conspiracies contained in its decision on defendant's Motion for Judgment of Acquittal.

4. Testimony of Rocky Pipkin

Defendant argues that the government presented false, misleading, and legally erroneous testimony by investigator Rocky Pipkin that contributed to the verdict.

A conviction obtained using knowingly perjured testimony violates due process. Jackson v. Brown, 513 F.3d 1057, 1071 (9th Cir. 2008). This prohibition against the use of false testimony applies even when the testimony in question was relevant only to the witness's credibility. Napue v. Illinois, 360 U.S. 264, 269 (1959). Even if the government unwittingly presents false evidence, a defendant is entitled to a new trial if there is reasonable probability that without the evidence the result of the proceeding would have been different. United States. v. Young, 17 F.3d 1201, 1204 (9th Cir. 1994).

In this case, there is no showing, and the defendant does not argue, that the government knowingly used perjured testimony, nor has there been a showing that the government, even unwittingly, presented false evidence regarding the testimony of Mr. Pipkin.

The defendant cites specific examples of what he claims are "false" testimony of Mr. Pipkin. Each of the examples the defendant cites are not evidence of false testimony, but are an expert's opinion evidence.

First, the defendant claimed Mr. Pipkin falsely testified that it was improper for an investigator to obtain any information from a confidential law enforcement source. Testimony of Rocky Pipkin, 8/6/10, RT at 11. Mr. Pipkin is correct on his interpretation of the law on this issue. When asked why it was not proper for an investigator to obtain any information from a confidential law enforcement source, Mr. Pipkin stated as follows:

Q. All right. Was that proper to do so?

A. No.

Q. Why not?

A. Well, law enforcement investigations are confidential, and no private investigator or private citizen has the right or authority to obtain that information. RT at 11, lines 10-15.

Mr. Pipkin is correct on his interpretation of the law. Law enforcement investigations are confidential, and no one outside law enforcement should have access to confidential law enforcement investigations.

The defendant takes issue with Mr. Pipkin's testimony that it is improper for any private investigator to pass on confidential law enforcement information to a client that he knows to be a target of the investigation. RT at 12. However, Mr. Pipkin elaborated on this opinion during cross-examination by defendant's counsel:

Q. Would you agree that it is not improper for an investigator to inform a client that he may be under investigation?

A. It depends on where you get the information.

Q. Okay. And it is not necessarily improper to discuss search warrants or subpoenas so that an appropriate investigations could be conducted or other lawful actions taken to prepare a defense; do you agree with that?

A. No.

Q. Why not?

A. In - it doesn't specifically address the issue in this case. The problem I have with that is the information that was provided to Mr. Holloway was from a source within law enforcement that should not have released the information, firstly. And then, secondly, it should not have been disseminated to the target of that criminal investigation, which was confidential at the time. No charges had been filed. RT 41, lines 4-22 (emphasis added).

Q. And an investigator can investigate a case before charges are filed, right?

A. Absolutely. But the problem that I have with this is the fact that when you - when you are relaying information that is confidential in nature, you are then assisting the individual or the target in obstructing justice because they are going to know about the investigation and possible search warrants and ultimately what is going to result from that. They are going to try to remove evidence, hide evidence, and that is, you know, thwarting the investigation.

Q. it depends on the intent of the investigator and the attorney in providing that Well, ultimately, information to their client; is that correct?

A. That is correct.

Q. An you could take confidential information that an investigation is coming, and here's the things we need to do in order to defend ourselves, to defend the client against the investigation?

A. Again, I have a problem with that, because in this particular case, the information was ultimately disseminated to the target of the investigation. And based on my reading of the transcripts, he acted on that information and he acted unlawfully. RT 42, lines 5-23.

This testimony of Mr. Pipkin was not false.

The defendant's next argument that Mr. Pipkin falsely testified concerns his testimony that an investigator cannot talk to a grand jury witness except as an investigator for the attorney who represents the witness. RT at 33.

The entire testimony of Mr. Pipkin on this issue is contained on pages 32 and 33 of the transcript. During that testimony, Mr. Pipkin admits that he has very little experience with Grand Jury proceedings. RT 32, lines 11-13. Mr. Pipkin was then asked the following:

Q. Right. And so the Grand Jury witness can talk about his testimony to attorneys and investigators, right?

A. I believe his attorney. I'm not - you know, I can't go as far as saying that anyone else can talk to them.

Q. So you don't know whether a witness who appeared before the Grand Jury is able to talk to anyone else about the testimony; you just don't have any knowledge or expertise in that area?

A. That is correct. RT at 33, lines 13-21 (emphasis added).

Therefore, Mr. Pipkin did not testify falsely. He admitted that he didn't know whether a witness was free to talk to others about his/her Grand Jury testimony.

Next, the defendant argues that Mr. Pipkin testified falsely that it would be improper for an investigator to receive unsolicited confidential information from a source. Mr. Pipkin explained his answer by repeatedly stating that it all depends on what kind of information the source is trying to give him. RT at 36, lines 13-23. He further explained that, if the information is obvious on its face that it is confidential information, he would end the conversation quickly. RT at 37, lines 4-9. He readily admits that one hasn't committed a crime by receiving such information, but a private investigator could open himself up to liability. Id., lines 10-14. He further explains that there is no code section or law that prohibits an investigator from receiving such information, but it was his opinion that it was a common sense situation. RT at 38, lines 1-8.

Therefore, there was no false testimony by Mr. Pipkin on this issue. He explained that his opinion was his own personal opinion, that it was not supported by a code section or case law, but he felt that it was a common sense approach in order to avoid civil and criminal liability on the part of the investigator.

Finally, the defendant argues that Mr. Pipkin testified falsely regarding his presence at an investigator's conference in Burlingame on June 12-13, 2009. The jury was free to believe or disbelieve Mr. Pipkin's testimony on this issue, particularly in light of his explanatory rebuttal testimony.

In evaluating Mr. Pipkin's testimony, the jury was given the standard Ninth Circuit instructions concerning expert witnesses:

You have heard testimony from persons, who, because of education or experience, are permitted to state opinions and the reasons for their opinions.

Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case.

Jury Instruction No. 13.

The jury was also given the standard Ninth Circuit jury instruction addressing the credibility of witnesses, which told the jury that they were "free to believe everything a witness says, or part of it, or none of it". Jury Instruction No. 9.

The defense called its own expert, Mr. David Queen, to rebut Mr. Pipkin's opinions. The jury could have concluded that Mr. Queen agreed with the essential elements of Mr. Pipkin's testimony (and the government's theory of the case), i.e., that the leaking of confidential law enforcement information from a private investigator to his client depends on the relationship between the private investigator and his client, and whether the investigator believes the client will act improperly on that information.

This convergence between Mr. Pipkin's testimony and Mr. Queen's testimony was brought out by defense counsel on cross-examination of Mr. Pipkin:

Q. And an investigator can investigate a case before charges are filed, right?

A. Absolutely. But the problem that I have with this is the fact that when you - when you are relaying information that is confidential in nature, you are then assisting the individual or the target in obstructing justice because they are going to know about the investigation and possible search warrants and ultimately that is going to result from that. They are going to try to remove evidence, hide evidence, and that is, you know, thwarting the investigation.

Q. it depends on the intent of the investigator and the attorney in providing that Well, ultimately, information to their client; is that correct?

A. That's correct. RT at 42, lines 1-14 (emphasis added).

Similarly, Mr. Queen admitted that a private investigator cannot disseminate confidential law enforcement information to his client if he believes his client may be intending on committing an offense based on that information:

A. And the part of the problem with your hypotheticals is you have to understand the relationship between the private investigator and the client. Because if a private investigator has reason to believe that his client is planning to commit an offense using the information, that's separate and distinct from communicating evidence, whether it is to a client or a lawyer, unless there is reason to believe the contrary . . . Testimony of David Queen, 8/10/10 RT at 54, lines 4-11 (emphasis added).

Q. And also it depends on the relationship between the two of them and the history of the relationship?

A. It would be the information the private investigator would have -

Q. About his client?

A. - about his client and about all the factual circumstances. RT at 56, lines 9-15 (emphasis added).

Mr. Queen never listened to the calls in this case, nor did he speak to the defendant about the nature of his relationship to Bob Holloway or have any knowledge of the nature of the relationship between the defendant and Bob Holloway. RT 55, lines 7-13; 56, lines 23-25.

The jury was free to weigh any contradictory evidence given by the experts in this case, however, at the same time, the jury could also consider what key evidence the experts agreed upon. See, Fountila v. Carter, 571 F.2d 487, 490 (9th Cir. 1978). What the expert witnesses agreed on in this case was consistent with the government's theory of the case - that it was the nature of the relationship between the defendant and Mr. Holloway that is key, and the passing on of confidential law enforcement information by the defendant to Mr. Holloway, while instructing Mr. Holloway to "look around his shop" to get rid of evidence, was evidence of the corrupt intent of the defendant.

5. Testimony of Kirk McAllister

A criminal defendant is not entitled to compel the government to grant immunity to a witness. United States v. Westerdahl, 945 F.2d 1083, 1086, (9th Cir. 1991) citing United States v. Shirley, 884 F.2d 1130, 1133 (9th Cir. 1989). An exception to this rule is where the fact-finding process is intentionally distorted by prosecutorial misconduct, and the defendant is thereby denied a fair trial. Westerdahl, 945 F.2d, at 1086, citing United States v. Lord, 711 F.2d 887, 892 (9th Cir. 1983).

The court stated in United States v. Duran, 189 F.3d at 1071:

Immunity is an executive, not a judicial function, and [t]his court has emphatically rejected the argument that the sixth amendment provides a defendant with a right to demand use immunity for defense witnesses who invoke their privilege against self-incrimination. An exception to this rule exists, however, where the prosecutor intentionally distorts the fact-finding process. The fact finding process is intentionally distorted where the prosecutor intentionally causes the witness to invoke the Fifth Amendment privilege, or "grant[s] immunity to a witness in order to obtain his testimony, while denying immunity to a defense witness whose testimony would directly contradict that of the government witness.

Id. at 1087 (citations omitted).

First, there was no motion or request made by defendant Ermoian to immunize McAllister.

Second, the government did nothing to cause McAllister to invoke his Fifth Amendment rights.

Third, none of the witnesses testified on behalf of the government under a grant of immunity, thus there is no inference of prosecutorial misconduct by not granting immunity to McAllister.

Fourth, the assertions that McAllister would have corroborated that defendant Ermoian had no corrupt intent are not supported. The court strikes the letter written by McAllister to Ermoian. Def. Motion Exh. 8. The letter is not under penalty of perjury and it is irrelevant in that it is dated 6 years, 8 months prior to the events in question. There is nothing in the letter, dated January 25, 2001, to confirm that McAllister would have testified that defendant Ermoian was working at his direction as an investigator for Holloway with respect to the recorded calls in question. Nor is there anything in the Declarations of Bob and Brent Holloway that would confirm the same. Those Declarations merely state what their perceptions were concerning Ermoian's work as it related to the representation of Bob Holloway and Road Dog Cycle.

The proposed testimony of McAllister does not directly contradict the government's evidence such that it would meet the test necessary to compel the government to grant immunity because there was no intentional distortion by the government. In fact, as stated above, the defense expert, David Queen, and the government's expert, Rocky Pipkin, agreed that it was the nature of the relationship between the defendant and Mr. Holloway that is key, and the passing on of confidential law enforcement information by the defendant to Mr. Holloway, while instructing Mr. Holloway to "look around his shop" to get rid of evidence, was evidence of the corrupt intent of the defendant.

The court notes a recorded call that was placed by Bob Holloway to McAllister at 9:31 a.m. - 18 minutes after defendant Ermoian called Holloway to tell him about the information he had received from Swanson regarding the Burn Out party and the potential search warrant. During the call at 9:31 a.m., Holloway asks McAllister if he had talked to Gary (defendant Ermoian) and McAllister tells him that he had not, that he had just got in. This shows that defendant Ermoian did not make the initial call to Holloway at McAllister's direction, contrary to defendant Ermoian's apparent assertions in this motion. There was sufficient evidence before the jury that Bob Holloway was seeking legal advice from Kirk McAllister concerning the leaked information, as counsel for the defendant advocated to the jury. Defendant Ermoian moved into evidence two telephone calls where Bob Holloway spoke about meeting with McAllister, presumably regarding the information passed on by defendant Ermoian and co-defendant Johnson. Def. Ermoian Exh. DE-1(b) and DE-2(b). McAllister called Holloway on 9/21/2007 at 8:38 a.m. - nearly a full day after the information from Swanson and Johnson was received by Holloway and Ermoian - and arranged for Holloway to come to his (McAllister's) office at 3:00 p.m. that day. Def. Ermoian Exh. DE-1(b). Later that day, at 2:42 p.m., Holloway called his wife and told her that he was meeting with McAllister. Def. Ermoian Exh. DE-1(b).

The defendant is unable to show prosecutorial misconduct and there is nothing to show that defendant Ermoian did not receive a fair trial.


For all the foregoing reasons and all reasons stated in open court in the oral rulings on these motions:

Defendant's Motion for Judgment of Acquittal is DENIED. Defendant's Motion for New Trial is DENIED.


Oliver W. Wanger

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