Beruflich Dokumente
Kultur Dokumente
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA
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Plaintiff No. CR 94 276 PJH
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DEFENDANT ARMSTRONG’S MOTION
v.
17 FOR DISCOVERY IN SUPPORT OF 28
U.S.C. § 2255 MOTION
18 CONNIE C. ARMSTRONG, JR.
19 Defendant
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Armstrong requests an order from this court permitting limited discovery in support of
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his pending 28 U.S.C. § 2255 motion.
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23 ARGUMENT
24 A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to
25 discovery as a matter of ordinary course. See Harris v. Nelson, 394 U.S. 286, 295 (1969). In
26 Harris, The Supreme Court held that “where specific allegations before the court show reason to
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8 of demonstrating good cause and must allege some material fact to trigger the court’s discretion
9 to grant leave for discovery. See Bracy v. Gramley, 520 U.S. 899, 908-09 (1997). Discovery is
10 not required if the habeas petition plainly warrants dismissal. See Mayle v. Felix, 545 U.S. 644
11 (2005). Here, Armstrong suggests that the Mayle v. Felix threshold has been met because this
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Court has issued a show cause order.
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At the onset, Armstrong notes that the government’s response to this Court’s show cause
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order failed to address almost all of the Brady violations raised in his 2255 motion. These
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violations include:
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a) Failure to produce documents showing that the operation of Armstrong’s
19 b) Failure to produce documents showing that the 36 audio tapes produced at the
20 close of trial were actually prepared at the request of the prosecution of this case, contrary to the
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express oral representations of AUSA Yamaguchi and the affidavit of SA Hatcher that the tapes
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concerned an unrelated investigation; 1 and
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24 In its response, the government seems to misconstrue this point as a re-litigation of the
judge’s evidentiary and continuance rulings on this topic. Armstrong apologizes for any
25 confusion. To the contrary, the issue is not whether the judge abused his discretion in ruling on
the record before him. Rather, the issue is would the judge have ruled differently if he knew the
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tapes in question actually concerned Armstrong’s prosecution in this case and were obtained at
27 the express instruction of AUSA Yamaguchi.
8 Concerning item (a), the prior investigation, Armstrong received documents through
9 FOIA referencing this investigation. [Exhibits p, 1-6, 7]. The documents show that the
10 investigation closed without a finding of wrongdoing. [Exhibits p, 8-9]. Although this prior
11 investigation occurred before Armstrong’s ownership, a partial FBI 302 shows that cash flow
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patterns analyzed in the prior investigation were the same as those occurring while Armstrong
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controlled the company. [Exhibits pp. 10-12]. Fortunately, the failure to disclose a prior
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favorable investigation is an oddity, but the Fifth Circuit nonetheless had the recent opportunity
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to consider the matter in U.S. v. Fernandez. 2 There, a unanimous panel analyzed an undisclosed
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investigation under the three familiar factors of Brady. The panel found that the fact of the
18 investigation was actually well-known during trial with only the results of the investigation
19 remaining undisclosed. The panel further found that the district judge conducted an in camera
20 review of the results and found no exculpatory material. Based upon these findings, the panel
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held that no Brady violation occurred. Here, of course, the prior Hamilton Taft investigation was
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clearly exculpatory yet was never disclosed to Armstrong. Further, the instant situation is more
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troubling from a policy perspective because, unlike the Fernandez investigation that looked for
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conduct which violated a known law, the inquiry here turned on whether known conduct could
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559 F.3d 303 (5th Cir. 2009).
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8 trial shows that AUSA Yamaguchi authorized SA Hatcher to conduct the undercover recording
9 operation. [Exhibits, p. 18.] This directly contradicts both the sworn affidavit of Hatcher
10 [Exhibits, p. 19-22] and the express assurances of AUSA Yamaguchi, both oral and written, to
11 the trial judge and to the Ninth Circuit. Additional documents reveal that the Dallas FBI office
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provided significant investigatory support to its San Francisco colleagues. [Exhibits, pp. 23-24;
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25; 26].
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When the state, through an act of flagrant prosecutorial misconduct,
15 precludes the introduction of evidence that, had it been admitted, would
undermine the court’s confidence in the outcome of a criminal proceeding, it
16 substantially increases the possibility that a fundamental miscarriage of justice—
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the conviction of an innocent individual—has occurred. Even more so if the state
by that egregious misconduct precludes the holding of the evidentiary hearing
18 itself.
19 Smith v. Baldwin, 510 F.3d 1127, 1156 (9th Cir. 2007)( Reinhardt, J., in dissent). Here,
20 the trial court relied upon the false representation of the AUSA and the FBI on this important
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evidentiary matter. Absent a stipulation from the government that this conduct occurred and was
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materially harmful to the defense, Armstrong requires the discovery of certain documents to
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expand the 2255 record. Accordingly, Armstrong requests un-redacted copies of all memoranda,
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reports, transcripts of oral statements, telephone logs and summary reports, and other such
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similar documents flowing between the San Francisco and Dallas offices of the FBI (including
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8 the instruction and the government conceded its materiality with the statement that the requested
9 instruction would amount to a “gutting of the government’s case.” [Exhibits, pp. 28-30 at 29.]
10 While the parties utilized the term “law of the case” in describing the requested instruction, that
11 doctrine is not fully on point.
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In an odd procedural conundrum, the trial judge hearing—and the appellate court
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reviewing—both Armstrong’s criminal matter and the Hamilton Taft bankruptcy case were the
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same. Even so, they were two different causes, thus making a law of the case application
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difficult if not impossible. In short, Armstrong had no standing to contest the actions in the
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bankruptcy case or its appellate proceedings, even though these proceedings directly impacted
19 Armstrong respectfully requests that this Court remain mindful that the Ninth Circuit
20 reversed the trial court and entered a ruling supporting Armstrong’s contention in the criminal
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matter. While a petition for rehearing was pending, the parties settled their dispute. 3 In response
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to motions by the parties, the Ninth Circuit vacated its opinion, thus reinstating the trial court’s
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order—an order that had been held erroneous. This vacatur is expressly prohibited by Supreme
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As additional evidence of the materiality of the bankruptcy proceeding to the criminal
26 prosecution, AUSA Yamaguchi actually authored an amicus brief urging rehearing by the Ninth
Circuit. [Exhibits, pp. 38-39].
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8 Hotel, L.P. v. City and County of San Francisco, Cal., 545 U.S. 323, 336 (2005). In briefing to
9 the trial court, the government argued that it was not a party to the bankruptcy case and should
10 not be bound by its holding. However, the government did not reveal its close alignment with
11 the bankruptcy trustee.
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Evidence delivered to Armstrong after trial shows that the government and the
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bankruptcy trustee were in privity, thus opening the door for a collateral estoppel argument that
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was otherwise unavailable. [Exhibit, p. 31, showing that counsel for the trustee met with AUSA
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Yamaguchi to “discuss prosecution strategy;” pp. 33-35, detailing an FBI meeting at the offices
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of the trustee; and pp. 36-37, containing a partial FBI 302 where a witness told the FBI
18 interviewer that the trustee was “doing your work.”] “Courts are no longer bound by rigid
19 definitions of parties or their privies for purposes of applying collateral estoppel or res judicata.”
20 Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064,
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1082 (9th Cir. 2003). In light of documentation showing the trustee’s participation in the
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government’s prosecution strategy and assertions that the trustee was doing the work of the FBI,
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Armstrong asserts a particularized need for documentation concerning the linkage between the
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He did, however, try. [Exhibit, pp. 40-41, docket sheet in the bankruptcy matter; and
26 pp. 42-47, Armstrong’s Motion to Recall Mandate to the Ninth Circuit.] The recall motion
overviews the Supreme Court precedent prohibiting vacatur under these circumstances.
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8 instigated. In its response, the government calls Armstrong’s arguments conclusory. The
9 remedy for a conclusory statement is the discovery of facts sufficient to plead with particularity,
10 and Armstrong shows good cause for the Court to order this discovery. It is axiomatic that most
11 of the relevant proof in such situations will be in the government’s hands. See Wayte v. U.S.,
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470 U.S. 598 (1985) (Marshall, J., dissenting); see also Alderman v. United States, 394 U.S. 165
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(1969) (“[D]isclosure must be made even though attended by potential danger to the reputation
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or safety of third parties or to the national security—unless the United States would prefer
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dismissal of the case to disclosure of the information”).
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Here, documents delivered to Armstrong after trial disclose the involvement of
18 Representative Pelosi in his prosecution. [Exhibits, pp. 48-51.] Shortly after the prosecution
19 launched its investigation, FBI Deputy Director Larry Potts sends a status report to Howard
20 Baker, then a director of Federal Express, 5 and copies the report to staff members of Pelosi and
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Senator Boxer. [Exhibits, p. 52]. This memo is the only communiqué produced which reveals
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contact between Mssrs. Baker and Potts. All documents initiating the involvement of Mr. Potts
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were withheld from Armstrong’s FOIA production, as were the follow-up reports promised in
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25 While the memo was sent to Baker, no corporate officer of Federal Express was on the
distribution. As a Delaware corporation, a Federal Express director is very different from a
26 corporate officer who would actual run the company. See generally In re Bridgeport Holdings,
Inc., 388 B.R. 548 (Bankr. D. Del. 2008)
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8 oral statements, telephone logs and summary reports, and other such similar documents flowing
9 between the San Francisco office of the FBI, main justice, Howard Baker, and any elected
10 official or staff member of an elected official (including without limitation the persons copied on
11 the April 3 Potts memo) where the subject of the evidence is Hamilton Taft or Armstrong.
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SUMMARY
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“[W]here specific allegations before the court show reason to believe that the petitioner
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may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief, it is the
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duty of the court to provide the necessary facilities and procedures for an adequate inquiry.”
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Harris v. Nelson, 394 U.S. 286, 300 (1969); see also RULES GOVERNING § 2255 CASES, Rule
18 6(a)(adopting the Harris standard as the test for “good cause.”) Armstrong therefore requests an
8 Armstrong respectfully requests that this Court order production of the requested
9 discovery items.
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