Free Motion to Strike - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, COLORADO a municipal corporation, Defendant. ______________________________________________________________________ DEFENDANT'S MOTION TO STRIKE TESTIMONY, ISSUE CURATIVE INSTRUCTION AND FOR SANCTIONS ______________________________________________________________________ Pursuant to Fed. R. Civ. P. 7(b)(1), 41(b), 46, 51, Fed. R. Evid. 103, 408 & 410 and the inherent powers of the Court,1 Defendant, City and County of Denver (hereafter "Denver"), by its attorneys, moves for an order:2 (1) striking the testimony offered by Plaintiff during his re-direct examination on Monday, June 26, 2006 related to plea discussions with Assistant City Attorney John Redmond and settlement discussions with Assistant City Attorney Jack Wesoky because it is directly contradictory to his testimony offered under oath in the Civil Service Commission hearing; (2) providing the jury with a curative instruction to the effect that there is no evidence that Mr. Redmond did anything improper with respect to his plea bargain discussions with Plaintiff or that Mr. Wesoky
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Chavez v. City of Albuquerque, 402 F.3d 1039, 1043-44 (10th Cir. 2005).

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The undersigned counsel does not make this motion lightly or without due thought. However, it is in the best interest of Denver to ensure a complete record on this very serious matter.

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did anything improper with respect to his settlement discussions with Plaintiff; and (3) that Plaintiff and Plaintiff's counsel be sanctioned for proffering testimony that they previously offered but then recanted under oath in the Civil Service Commission hearing. The specific sanction sought is in the form of (a) a dismissal of Plaintiff's substantive due process claim to the extent that it is predicated on Mr. Redmond or Mr. Wesoky's actions in the summer of 2003 and (b) attorney's fees in having to file this motion. In support of this motion, Defendant states the following: 1. Assistant City Attorney Jack Wesoky is an employment lawyer assigned to

work in the Litigation Section of the City Attorney's Office. He has been primary trial counsel in this case (and the related administrative cases) for three years.3 2. Assistant City Attorney ("ACA") John Redmond is a prosecutor assigned

to work in the Prosecution Section of the City Attorney's Office. He was assigned to prosecute the criminal summons issued to Plaintiff charging him with shoplifting. Sworn testimony during Commission hearing on November 5, 2003 3. During the administrative hearing on propriety of Plaintiff's termination,

Plaintiff testified under oath on November 5, 2003 in front of the Honorable John Criswell who was assigned to be the hearing officer presiding over the administrative hearing. 4.
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During the hearing, Plaintiff testified:

As officers of the court, the undersigned counsel assert that everything asserted in this motion with respect to Messrs. Wesoky and Redmond could be established by way of admissible evidence should the Court determine necessary. The City would assert, however, that this is not necessary because Plaintiff's testimony today contrasted with his testimony on November 5, 2003 is sufficient for the purpose of this motion.

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If I understand what the prosecutor [identified as ACA Redmond] offered me, it was basically if I dropped the case, just let it go, if I didn't do anything, within six months my record would be cleared from the fire department, and I would not have a record of theft, therefore further investigation. Page 87, lines 18-23 (attached as Exhibit A).4 In other words, Plaintiff testified that ACA Redmond made an offer in the criminal case that included a promise related to his employment record in the Fire Department.5 5. During ACA Wesoky's subsequent cross-examination during the hearing,

the following questions-and-answers occurred with Plaintiff, see page 97, lines 5-24: ACA Wesoky: Mr. Cadorna, you testified shortly before the brief recess that someone unidentified made you some kind of offer about dropping the Civil Service Commission case, and the criminal case would be dismissed; does that fairly capsulize what you said? Plaintiff: Well, that it would be expunged, not dismissed. ACA Wesoky: Let me see if I understand your testimony. Plaintiff: Dismissed. ACA Wesoky: That if you dropped the Civil Service Commission case, the criminal case would go away? Plaintiff: It would no longer be placed on my record, if I was there for six months, not go away. It would no longer be listed as theft on my fire department record. ACA Wesoky: As consideration for that you were to drop the Civil Service Commission case? Indeed, the entire relevant excerpt of the transcript is attached as Exhibit A -- pages 1-2 (introduction and swearing of Plaintiff under oath) and pages 86-118, and incorporated herein by reference. For the purpose of brevity, only certain key statements are reproduced in this motion.
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Plaintiff's counsel then restated Plaintiff's answer in summary fashion at page 88, lines 3-8.

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Plaintiff: Yes. ACA Wesoky: Who made you that offer? Plaintiff: You did, Sir. 6. At this point in the exchange, ACA Wesoky advised the Hearing Officer

that he had become a witness in the case by virtue of Plaintiff's testimony. There was a discussion between ACA Wesoky, Plaintiff's Counsel Mark Brennan, and Judge Criswell about the import of Plaintiff's testimony, and ultimately a recess was taken. See pages 97 ­ 102. 7. After the recess, Plaintiff's counsel Mark Brennan advised Judge Criswell

of the following: I consulted extensively with my client concerning the issues raised by his testimony prior to the break, and I believe, based upon the information I have, that it could be that some additional examination would clarify the situation. It appears that because he was involved in dual proceedings, both the criminal proceedings against him and the Civil Service Commission proceedings simultaneously, and had some discussions with Mr. Wesoky concerning the Civil Service case, and his termination occurred as the criminal case was pending, he became confused with respect to what he was told by whom with respect to the effect of a plea agreement, or the effect of a settlement of the Civil Service Commission case. I would represent to the Court, if that would be sufficient, that, based upon my consultation with my client, he was confused, and had been advised that pleading guilty as part of a plea agreement to the criminal allegations of shoplifting would adversely affect his ability to succeed in the Civil Service Commission appeal. That, of course, was proper advice, a guilty plea would have obvious legal consequences with respect to his Civil Service Commission appeal, and that he confused the expungement of his personnel record, that is the removal of his termination for theft from his personnel record as part of a civil settlement with the City, with the settlement of criminal charges against him.

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It would appear that there were parallel tracks, it would appear there was no improper offer made by Mr. Wesoky to drop the criminal prosecution in exchange for the withdrawal of his civil claim in the Civil Service Commission appeal. Page 106, line 10 ­ page 107, line 19 (emphasis added). 8. Judge Criswell, taking Plaintiff's counsel statement as an "offer of proof,"

allowed for Plaintiff's Counsel to examine Plaintiff in an attempt to clear up his "confused" testimony. Thereafter, the following question-and-answer occurred between Plaintiff's counsel and Plaintiff (page 110, line 13 ­ page 113, line 15): Mr. Brennan: Mr. Cadorna, you were involved simultaneously in advancing your Civil Service Commission appeal, and defending yourself against criminal charges, weren't you? Plaintiff: That's correct. If I might make an apology? Mr. Wesoky, with regard to you, I am very sorry, and to the Court, I'm sorry. I was confused because I had so much going on. This has been hard on me, and all I can do is make apologies for my stupidity, and say that I am sorry. Mr. Brennan: Mr. Cadorna, were you in May of 2003 represented by counsel in your Civil Service Commission appeal? Plaintiff: I was led to be represented by the union, when, in fact, I wasn't. Mr. Brennan: Did you negotiate directly with Mr. Wesoky with respect to a possible settlement of your Civil Service Commission appeal? Plaintiff: Yes, I did. Mr. Wesoky: Your Honor, just for the record, I want to be clear that offers of settlement are not being used for substantive evidence. Mr. Brennan: Yes, definitely. Mr. Wesoky: This is merely to clear the air on our problem.

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Mr. Brennan: I agree. The Court: I understand that, yes. Mr. Wesoky: Thank you, Judge. Mr. Brennan: What do you recall Mr. Wesoky offering to do in response or in exchange for your withdrawal on the Civil Service Commission appeal? Plaintiff: That my records would not show terminated, but retired. Mr. Brennan: Likewise, was there at some point prior to the trial in May 2003 some kind of discussion of a possible plea agreement that would dispose of the criminal charges? Plaintiff: In regard to Mr. Redmont [sic]? Mr. Brennan: I assume he was representing the City? Plaintiff: Yes. Mr. Brennan: And you were represented by Donald Wasko -Plaintiff: Yes. Mr. Brennan: -- in the criminal proceeding, and did Mr. Redmont make some kind of offer to resolve the criminal case? Plaintiff: He said that if I pleaded guilty to the shoplifting, that if everything went okay for six months, my records would not show that I had been prosecuted for shoplifting. Mr. Brennan: There was an offer of a deferred prosecution if you were not charged with another crime in six months? Plaintiff: That's correct. Mr. Brennan: Did you at any time have any discussions with anyone concerning the effect that the guilty plea, that would be a condition of your plea agreement in the criminal case, would have on your civil service appeal? Plaintiff: I discussed it with my criminal attorney, Mr. Wasko, at that time, and he said that if I pleaded guilty to the criminal charge of shoplifting, that my

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chances of winning, or even attempting to go to the Civil Service, were null and void. Mr. Brennan: Earlier when you testified concerning your communications with Mr. Wesoky, you appeared to state that Mr. Wesoky had told you that the criminal prosecution would be dismissed if you would withdraw your Civil Service Commission appeal. Was that your intention, or is that what you meant to say? Plaintiff: No, I did not. I meant that ­ I was speaking about two different things at the same time. I meant to say that Mr. Wesoky had offered me an offer that if I would not go forward on the civil service examination, and sign a new retirement, that upon completion of this, within two days my records would not show terminated, but retired. 9. ACA Wesoky then questioned Plaintiff, and clarified further that the offer

he had made to Plaintiff was that if he withdrew the appeal, his termination would be changed to a resignation (as opposed to a retirement). And further, that at the time of this offer, Plaintiff consulted with an attorney Stefan Kazmierski. Page 114, line 4 ­ page 115, line 17. 10. ACA Wesoky concluded by asking Plaintiff, "so you are telling us now that

your testimony earlier today was mistaken?" ­ to which Plaintiff replied, "That is correct." Page 115, lines 18-20. Plaintiff again apologized about this mix-up. See page 117, lines 11-18. Sworn testimony during trial in this case on June 26, 2006 11. Notwithstanding the extensive prior testimony related to Plaintiff's

confusion about ACA Wesoky and Redmond, during Plaintiff's trial testimony today, June 26, 2006, his counsel asked him why he did not apply for any firefighter jobs after he was terminated from the City. In response, he testified about the pending criminal shoplifting case, and said that ACA Redmond told him that if he pleaded guilty to

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shoplifting and was a "good boy" for six months, Mr. Redmond would change the charge in six months and they'd change the records to show that he wasn't fired.6 12. Plaintiff's counsel asked if Plaintiff's appeal was still pending before the

Commission during this exchange between Plaintiff and ACA Redmond. (This point is important because it demonstrates that Plaintiff's counsel continued to pursue this testimony, knowing that it was inaccurate, as explained above.) Plaintiff responded that this occurred while he was waiting the outcome of the criminal trial. 13. Plaintiff's counsel then asked something to the effect of whether if

between the first and second criminal trial, Plaintiff had any conversations with ACA Wesoky about settlement, and in response to this question, Plaintiff reiterated that ACA Redmond made a deal in the context of the prosecution case with respect to the employment record; and that conversely, ACA Wesoky offered to get the criminal charge dismissed if Plaintiff agreed to dismiss his Commission appeal. 14. Plaintiff's testimony today, and Plaintiff's counsel's pursuit of this

testimony ­ in light of the prior colloquy at the Civil Service Commission appeal ­ was a surprise to Denver and its counsel. Plaintiff's counsel made absolutely no effort today to try to clear up the "confusion" as he did before Judge Criswell. 15. Therefore, immediately after this testimony today, ACA Wesoky asked for

a bench conference but the Court denied the request. ACA Wesoky then planned to address this issue during re-cross examination of Plaintiff (since this was not a subject

The City does not have a transcript of today's trial testimony, but this exchange occurred sometime after 2:25 p.m. when Plaintiff's counsel began his re-direct examination of Plaintiff.
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that ACA Wesoky anticipated would come up during the re-direct examination in light of the previous testimony about this matter at the Commission hearing, but the Court limited re-cross examination to only questions about exhibit 57. ACA Wesoky subsequently renewed his request to address a matter to the Court immediately after the 3:20 break, and the Court indicated that it would take up the matter after the jury was excused. Denver moves that all of Plaintiff's testimony regarding ACAs Wesoky and Redmond be stricken 16. Denver now files this motion because the line of questioning pursued by

Plaintiff's counsel and Plaintiff's testimony, as described above in paragraphs 4-6 is directly contradictory to testimony that was offered in the Commission hearing. 17. While Denver would give Plaintiff and his counsel the benefit of the doubt

with respect to the "confused" testimony the first time it was offered in the Commission hearing, it is inexplicable that Plaintiff and his counsel would pursue this exact line of questioning in front of the jury in the trial of this case.7 18. Local Rules 83.4 & 83.6 incorporate the Colorado Rules of Professional

Conduct for counsel appearing before this Court. In turn, Rule 3.3 of the Colorado Rules of Professional Conduct requires candor to the tribunal, and requires an attorney who has offered evidence known to be false to take reasonable remedial measures. It

Indeed, it is troubling that Plaintiff and his counsel have repeatedly made claims of serious and unethical improper conduct on behalf of attorneys representing Denver, but offer absolutely no evidence to back up such serious allegations.
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is certainly Denver's hope that Plaintiff and his counsel will, albeit belatedly, take such reasonable remedial measures in response to this motion. 19. Because there can be no "confusion" or "mistake" defense this time

around, Denver respectfully requests that all of the testimony offered by Plaintiff with regard to ACAs Wesoky and Redmond be stricken. Denver also moves that a curative instruction be given 20. Because the potential prejudice to Denver by virtue of Plaintiff's testimony

today regarding ACAs Wesoky and Redmond is so great, in addition to Denver's request that the testimony be stricken, Denver respectfully requests that the following curative instruction be given to the jury: You are not to consider any of the testimony Plaintiff offered with respect to his conversations with Assistant City Attorney John Redmond with respect to plea negotiations, or his conversations with Assistant City Attorney Jack Wesoky about settlement negotiations. Plaintiff's testimony cannot and should not be construed as evidence that either Mr. Redmond, or Mr. Wesoky engaged in any improper behavior with respect to discussions each of them may independently have had with Plaintiff. Plaintiff has admitted in prior sworn testimony that Mr. Wesoky did not make any offer in the Commission appeal about the possible impact of a settlement on the criminal charge. Moreover, Plaintiff apologized to Mr. Wesoky for initially confusing and mixing up his conversations with Mr. Wesoky and Mr. Redmond. Denver moves that Plaintiff and his counsel be sanctioned 21. Because the testimony today undermines the integrity of these

proceedings and is unfair and prejudicial to Denver and its attorneys, Plaintiff and his counsel should be sanctioned for their conduct in advancing testimony that they previously admitted was in error. The specific sanction sought is in the form of (a) a dismissal of Plaintiff's substantive due process claim to the extent that it is predicated

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on Mr. Redmond or Mr. Wesoky's actions in the criminal prosecution; and (b) attorney's fees incurred in preparing and filing this motion. 22. As to the sanction of dismissal, this Court, sitting by designation on the

United States Court of Appeals for the Tenth Circuit, previously addressed a case that involved a similar issue, Chavez v. City of Albuquerque, 402 F.3d 1039 (10th Cir. 2005) (attached as Exhibit B). 23. In Chavez, a plaintiff sued the City of Albuquerque and various individual

defendants alleging excessive force in violation of 42 U.S.C. § 1983. There, plaintiff lied at his deposition and finally admitted to the lie during the trial. In affirming the district court's dismissal of the plaintiff's case based on plaintiff's perjury, the Tenth Circuit held that there are the following factors that should be considered in informing a district court's decision to dismiss a case: (1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions. 24. Here, Denver has been prejudiced by this testimony because it

presumably has been offered in an effort to prove Plaintiff's substantive due process claim and now compels Denver to ­ in mid-trial -- assess whether it needs to call Mr. Wesoky, Mr. Redmond, or both of them to rebut this "surprise" testimony. This may require some change in counsel for Denver ­ particularly if Mr. Wesoky's testimony is necessary. 25. Second, this type of blatant offer of false testimony ­ notwithstanding

previously exhaustively addressing this issue in front of Judge Criswell ­ interferes with

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the judicial process. A central issue in this case is whether the City violated Plaintiff's substantive due process right, and even the suggestion that ACAs Wesoky and Redmond attempted to jointly manipulate the criminal prosecution and Civil Service Commission appeal could go to that issue. While Denver submits that such a theory is fatally flawed for other reasons (to be addressed in Denver's Rule 50 motion), such testimony still interferes with the integrity of the judicial process. 26. Third, Plaintiff and his counsel are culpable because, as demonstrated by

the Civil Service Commission testimony, they cannot a second time around claim "mistake." 27. Fourth, while the Court arguably has not warned Plaintiff or his counsel as

to this particular issue, the Court did ­ very deliberately ­ swear Plaintiff under oath. As the Chavez court said, "`[i]t would render the sanctity of the oath quite meaningless to require admonition to adhere to it.'" 402 F.3d at 1045 (citation omitted). Moreover, the Court has provided numerous warnings to Plaintiff's counsel about his general trial tactics, including his gratuitous comments that appear to be offered to affect the jury. 28. Finally, Denver is at a loss as to what lesser sanction would remedy the

testimony of Plaintiff and the pursuit of such testimony by his counsel. 29. In addition to the requested sanction of dismissing Plaintiff's malicious

prosecution claim to the extent that it is part of his substantive due process claim (Denver does not by this argument waive any other argument it may have to the legal infirmity of Plaintiff's claim), Denver also seeks attorney's fees in having to prepare this motion.

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30.

In compliance with D.C. Colo.LCivR. 7.1 (A), the undersigned certifies that

he attempted to contact Plaintiff's counsel by telephone at 8:30 p.m. after returning to his office and studying this issue. The undersigned left a voice mail summarizing the issue and asking Plaintiff's counsel to return his call. As of the time of the e-filing of this motion, Plaintiff's counsel has not returned the undersigned's call. WHEREFORE, the relief requested herein should be granted. Respectfully submitted this 26th of June, 2006. JACK WESOKY Assistant City Attorney By: s/ Jack Wesoky _______ Jack Wesoky Denver City Attorney's Office 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: 720-913-3100 Facsimile: 720-913-3190 E-Mail: [email protected] ATTORNEY FOR DEFENDANT

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CERTIFICATE OF MAILING I certify that on June 26th, 2006, I electronically filed the foregoing motion with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: Mark E. Brennan [email protected] and I hereby certify that I have mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name: Interoffice mail to: Manager Alvin LaCabe, Jr. Manager of Safety Department of Safety 1331 Cherokee ST. Denver, CO 80204 Chief Larry Trujillo Department of Safety Denver Fire Department 745 W. Colfax Denver, CO 80204 s/ Sybil Kisken _______________ Sybil Kisken OFFICE OF THE CITY ATTORNEY

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