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United States v. Katakis

United States District Court, E.D. California

May 9, 2014


For Wiley C. Chandler, Defendant: Claudia A. Quiroz, LEAD ATTORNEY, Jeffrey L. Bornstein, K & L Gates, LLP, San Francisco, CA.

For Andrew B. Katakis, Defendant: Paul Joseph Pfingst, LEAD ATTORNEY, Higgs Fletcher & Mack LLP, San Diego, CA; Elliot Remsen Peters, Steven A. Hirsch, Keker and Van Nest LLP, San Francisco, CA.

For Donald M. Parker, Defendant: Scott L. Tedmon, LEAD ATTORNEY, Law Offices of Scott L. Tedmon, Sacramento, CA.

For Anthony B. Joachim, Defendant: Kristy Kellogg, Thomas A. Johnson, LEAD ATTORNEYS, Law Office Of Thomas A. Johnson, Sacramento, CA.

For Steven Swanger, Unknown: Stephen J. Burns, LEAD ATTORNEY, Law Offices Of Stephen J. Burns, Sacramento, CA; William C. Hahesy, LEAD ATTORNEY, Law Offices of William C. Hahesy, Fresno, CA.

For LPS Agency Sales and Posting, Inc., Christina Ling, Michael Lawrence, Anthony Kilburg, Roseanna Sanchez, Unknown: Marc Holden Axelbaum, LEAD ATTORNEY, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, CA.

For Richard Northcutt, Movant: Doron Weinberg, LEAD ATTORNEY, Law Offices Of Doron Weinberg, San Francisco, CA.

For USA, Plaintiff: Anna Tryon Pletcher, Tai Snow Milder, LEAD ATTORNEYS, U.S. Antitrust Division, San Francisco, CA; David Ward, GOVT, Department of Justice / Antitrust Division, San Francsico, CA; Kelsey Linnett, GOVT, May Lee Heye, GOVT, U.S. Department of Justice - Antitrust Department, San Francisco, CA.



Page 1082


In the Superseding Indictment, the government charged defendant Andrew Katakis with violation of the Sherman Antitrust Act, 15 U.S.C. § 1; conspiracy to commit mail fraud, 18 U.S.C. § 1349; and obstruction of justice, 18 U.S.C. § 1519. After a twenty-three-day jury trial, the jury found Katakis guilty of the Sherman Antitrust and obstruction of justice charges but was unable to reach a verdict on the conspiracy to commit mail fraud charge. (Docket No. 277.) Pursuant to Federal Rule of Criminal Procedure 29, Katakis seeks a judgment of acquittal on the Third Count for obstruction of justice.

The Superseding Indictment charged and the evidence at trial established that the government began an investigation in 2009 of anti-competitive conspiracies between Katakis and other purchasers at public foreclosure auctions in San Joaquin County, California. As part of that investigation, the government subpoenaed bank records for Katakis and his company from Oak Valley Community Bank on August 27, 2010. In response to the subpoena, the bank sent Katakis a letter on September 1, 2010 informing him of the subpoena and providing him with a copy of it. The Superseding Indictment charged that Katakis violated § 1519 " [i]n or about September 2010" when he " deleted and caused others to delete electronic records and documents" and " installed and used and caused others to install and use a software program that overwrote deleted electronic records and documents so that they could not be viewed or recovered." (Docket No. 136 at 8:27-9:5.)

In its case-in-chief, the government primarily, if not exclusively, pursued the obstruction of justice charge by seeking to establish that Katakis purchased and ran a program called DriveScrubber 3 (" DriveScrubber" ) on at least four computers and the company mail server shortly after he received a copy of the subpoena. According to the initial testimony from the government's expert, the program successfully deleted emails on Katakis's Dell computer, Steve Swanger's Asus computer, and the company mail server. To rebut this evidence, Katakis offered expert testimony that discredited the testimony from the government's expert. Katakis timely moved for a judgment of acquittal pursuant to Rule 29(b) and, during argument, the government indicated it would pursue the obstruction of justice charge based on Katakis's alleged manual deletion of emails independent of running DriveScrubber.

As provided for in Rule 29(b), the court reserved ruling on the motion until after the jury returned a verdict. See Fed. R. Crim. P. 29(b)

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(" The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict." ). Because the jury returned a verdict of guilty against Katakis on the obstruction of justice charge, the court will now address his motion for acquittal.

Pursuant to Rule 29(a), " the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." " A motion for Judgment of Acquittal is reviewed on a sufficiency-of-the-evidence standard." United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (quoting United States v. Stoddard, 150 F.3d 1140, 1144 (9th Cir. 1998)). " Under that standard, evidence supports a conviction, if, viewed in the light most favorable to the government, it would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." Id. (quoting Stoddard, 150 F.3d at 1144).

For the jury to have found Katakis guilty of obstruction of justice, it had to find that the government proved each of the following elements beyond a reasonable doubt:

[1] that defendant Katakis knowingly altered, destroyed, or concealed electronic records or documents; [2] that defendant Katakis acted with the intent to impede, obstruct, or influence an investigation that he either knew of or contemplated; and [3] that the investigation was about a matter by or within the jurisdiction of the United States Department of Justice or Federal Bureau of Investigation.

(Jury Instruction No. 20 (Docket No. 268)); see also 18 U.S.C. § 1519 (" Whoever knowingly alters, destroys, mutilates, 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 or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both." ).[1] The Superseding Indictment charged that Katakis violated ยง 1519 and did not charge him with attempt. Under the ...

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