Free Motion for Reconsideration - District Court of Arizona - Arizona

1 TIMOTHY C. HOLTZEN 2 245 W. Roosevelt St. 3 State Bar No. 004723 4 (602) 368-9140 fax 5 6 7 8 United States of America, 9 10 12 13 14
v. Plaintiff, Attorney for Defendant UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) No. CR 03-0974-PHX-DGC MOTION FOR RECONSIDERATION OF MOTION FOR NEW TRIAL (Oral Argument Requested) (602) 799-6336 Phoenix, Arizona 85003 Attorney at Law

11 Neil Rusty Bond,
Defendant.

The defendant hereby moves this Court to Reconsider the Motion for a New

15 Trial for the reasons set forth in the accompanying memorandum and attachments, as 16 well as argument to this Court. 17 18 19 20 21 22 23 24 25 26 27 28
Copy of the foregoing mailed this 9th day of January 2006 to: Joscelyn N. Funnié and/or Michelle Hamilton-Burns Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Neil Rusty Bond Defendant

RESPECTFULLY SUBMITTED this 9th day of January 2006.

__/s TimothyC. Holtzen Timothy C. Holtzen Attorney for Defendant

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MEMORANDUM There is a sound basis for a new and fair trial for the reasons set forth in the

3 Motion for a New Trial. Mr. Bond should not lose his insurance license and livelihood 4 while waiting for an appellate court to conclude so, when relief is appropriate and a 5 more appropriate use of judicial resources now. 6
The government suggests that there was strong enough evidence of guilt to

7 withstand a motion for a new trial. The government relies now, as it did at trial, on its 8 evidence suggesting the defendant had "gross" income, which they weighed by the 9 Social Security standards of "net" income, for the jury to conclude there was fraud and 10 theft. Yet the government never attempted to, or even looked to, evaluate or establish 11 what his "net" income was during the time charged in the indictment. This Court has 12 the benefit of transcripts from the trial to review and to resolve any disputes. 13 Background 14
The government argued that there was a duty to report all work hours and

15 income "no matter how much they earn or how many hours they work." 16 Governments's Opposition to Defendant Motion for a New Trial (hereafter 17 "Response") at 4. The government suggested that defendant knew of a requirement 18 because Barbara Jackson, an SSA work incentive coordinator, testified that it is routine 19 practice to advise disability benefits recipients ("beneficiaries") of the requirements. 20 Response at 4. There never was evidence of what form of reporting was "required" by 21 Social Security Administration ("SSA"), but Ms. Jackson testified that it could be by 22 telephone, mail, or in person. RT 3/2/05 119. The SSA file for Bond showed that he 23 told an SSA representative in a telephone call in 1996 that he had begun selling 24 insurance. RT 3/2/05 14. He also wrote SSA a letter advising of his work on May 11, 25 1996. Trial Ex. 105. 26 27 28 2
The government suggested that defendant knew of a duty to report any income

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1 or hours worked because government's exhibit 2 was a copy of an application for 2 benefits which, among many other things, referred to an agreement to notify SSA if "I 3 go to work as an employee or a self-employed person." Govt Ex. 2, p. 3. that 4 application for benefits bore his signature of the defendant and the date of August 23, 5 1991. RT 3/2/05 108. During the same time frame, SSA evaluation of the defendant 6 included a medical exam of Bond with conclusions that the tests showed his IQs to be 7 in the low 80s with a drop of at least 15 IQ points from "postconcussive syndrome" 8 after the MVA [motor vehicle accident]. RT 3/2/05 94-95, 107-109. The SSA 9 concluded at that time that Bond was severely impaired and disabled. RT 3/2/05 109. 10 A review medical examination was conducted in 1998 and again Bond was determined 11 by SSA to still be severely impaired. RT 3/2/05 111. 12
Furthermore, Bond introduced evidence that he had been told by an SSA

13 representative that he need not report when his net income was below $500 a month 14 and, although Barbara Jackson testified that SSA Representative should not advise 15 beneficiaries that way, Bond had a recent tape recording of an SSA Representative, 16 consistent with what he had been told before, that is, advising that if his self 17 employment net income was below that level ($590 now), then SSA didn't "even need 18 to know about it." RT 3/2/05 118-119; RT 3/9/05 113, 118, 135: RT 3/10/05 50 [Ex. 19 104, tape played, transcript attached, p. 6-8]. They also advised him that residual 20 income did not count toward evaluating income because it did not require work for him 21 to renew the policies.1 RT 3/10/05 34-35. He relied on the advice he got from SSA. 22 23 24 25 26 27 28
Bond tape recorded these telephone calls and sought the return of the tapes as property seized by the agents during the search. Agent Troy Turk's position was that the Office of the Inspector General does not have such tapes and did not take them. Bond filed a motion for their return and subsequently paid for and passed a private polygraph examination on the subject. Judge Silver denied the motion for return or dismissal and declined to look at the search video or photographs extracted from the search video, as well as hear testimony of any witness, but said that the issue could be raised again if the
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1 Certainly, without a certified public accountant to be an expert witness of the 2 government's exhibits, or a summary witness to examine and prepare charts excluding 3 residual income to review the countable income, Bond was deprived of significant 4 evidence. After lengthy and careful analysis of the government's charts and exhibits, 5 including insurance customers or accounts that were identified by number rather than 6 name, and determining which were commissions for work and which were residual 7 payments, Bond's apparent net income never exceeded the allowable amounts. See, 8 Attachment A. 9
Mr. Bond asks this Court to grant a new trial for each of the following reasons,

10 or alternatively for the cumulative error that this Court finds. See, e.g., Locken v. 11 United States, 383 F.2d 340, 341 (9 th Cir. 1967)(cumulative effect of errors warrants a 12 new trial); United States v. Sanchez, 176 F.3d 1214, 1215 (9 th Cir. 1999)(single error 13 may be harmless). 14 A. The Court Should Have Granted the Motions for Judgment of Acquittal. 15
Social Security Disability Insurance is not the same as welfare for the poverty

16 stricken. The benefits are paid to those who are severely impaired and cannot perform 17 substantial gainful activity, regardless of their assets.2 Although it is clear that the 18 continuing eligibility for benefits is measured by hours worked or net income for self19 employed persons like Bond (RT 3/1/05 131-32), the record is devoid, vacuous, and 20 empty of evidence the government produced to show Bond's net income after business 21 expenses to produce income and exclusion of any money that is not countable income. 22 This Court may grant a new trial "if the interest of justice so requires." Fed. R. Crim. 23 24 25 26 27 28
Bond was convicted. RT 3/1/05 15. "The term `disability' means--(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C.A. § 416 (i)(1)(A).
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1 P. Rule 33(a). 2
"Generally, the trial court has broader discretion to grant a new trial under Rule

3 33 than to grant a motion for acquittal under Rule 29, but it nonetheless must exercise 4 the Rule 33 authority sparingly and in the most extraordinary circumstances." United 5 States v. Ferguson, 246 F.3d 129, 134 (2d Cir.2001) (citation and internal quotation 6 marks omitted). When exercising the discretion conferred by Rule 33, "the court is 7 entitled to weigh the evidence and in so doing evaluate for itself the credibility of the 8 witnesses." United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir.1992) (citation and 9 internal quotation marks omitted). "Generally, the trial court has broader discretion to 10 grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29, but 11 it nonetheless must exercise the Rule 33 authority sparingly and in the most 12 extraordinary circumstances." United States v. Ferguson, 246 F.3d 129, 134 (2d 13 Cir.2001) (citation and internal quotation marks omitted). When exercising the 14 discretion conferred by Rule 33, "the court is entitled to weigh the evidence and in so 15 doing evaluate for itself the credibility of the witnesses." United States v. Sanchez, 969 16 F.2d 1409, 1413 (2d Cir.1992) (citation and internal quotation marks omitted). The 17 ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a 18 manifest injustice. The trial court must be satisfied that competent, satisfactory and 19 sufficient evidence in the record supports the jury verdict. The district court must 20 examine the entire case, take into account all facts and circumstances, and make an 21 objective evaluation. There must be a real concern that an innocent person may have 22 been convicted. United States v. Saneaux, 2005 WL 2875324, at 2 (S.D.N.Y.,2005). 23 Here there is that real concern an innocent person may have been convicted. With the 24 assistance of an accountant for the defense and a review of the trial record, the 25 evidence has shown that the government's case relied on Bond's gross income receipts 26 instead of evidence of net income that is necessary for a proper guilty verdict. 27 28 5

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1

The court and the jury were mislead. In cross-examination of the government's

2 expert witness, Barbara Jackson, concerning whether residual or renewal commissions 3 are counted toward substantial gainful activity, she grouped three kinds of insurance 4 together and described: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
See, with casualty, property, health insurance, the salesman keeps in touch with their client. That's my understanding, because they have to update their client's information each year, in order to ­ have that policy renewed. So there is some work involved. RT 3/2/05 145. Her position was that a person who could write a song that became a hit would not be considered to have performed substantial gainful activity, even though large royalties continued to come in to him, but a health insurance salesman who received the equivalent of royalties, residual or renewal commissions, would have performed substantial gainful activity. To prevail on claim that government knowingly presented false testimony, defendant must show that (1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) the false testimony was material. U.S. v. Zuno-Arce, 339 F.3d 886, 889 (9 th cir. 2003) The statements of the expert witness were false. The Health Insurance Portability Act of 1996 made health insurance policies for groups or individuals automatic renewals, with guaranteed renewal by the statute: 42 USCA § 300gg-12 GUARANTEED RENEWABILITY OF COVERAGE FOR EMPLOYERS IN THE GROUP MARKET. (a) IN GENERAL.--Except as provided in this section, if a health insurance issuer offers health insurance coverage in the small or large group market in connection with a group health plan, the issuer must renew or continue in force such coverage at the option of the plan sponsor of the plan. ... 42 USCA § 300gg-42 GUARANTEED RENEWABILITY OF INDIVIDUAL HEALTH INSURANCE COVERAGE. "(a) IN GENERAL.--Except as provided in this section, a health insurance issuer that provides individual health insurance coverage to an individual shall renew or continue in force such coverage at the option of the individual.

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1 Only certain things could lead to cancellation of a policy, like non-payment of 2 premiums, but those were within the power and control of the policyholder. 42 U.S.C. 3 § 300gg-12(a)(1) et seq., and § 300gg-42(a)(1), et seq. Health insurance agents like 4 Bond, but unlike casualty and property insurance, do not have additional work for a 5 customer to keep health insurance. As a matter of common knowledge, health 6 insurance cards, or other documents, advise customers to contact the company, not the 7 sales agent, if they have any questions or problems. The prosecution team included an 8 Special Assistant United States Attorney from the Social Security Administration, as 9 well as their witness, Mr. Rodriguez, who was a certified fraud examiner for the SSA. 10 They knew or should have known that the statements were false. The information is 11 material. 12
With the assistance of the court appointed accountant, the defense can show that

13 Bond was within eligibility limits, especially when excluding residual or renewal 14 commissions that are based on the customers' choice to automatically keep a health 15 insurance policy without any work or contact from the salesman. In other words, 16 especially commission that drop in percentage after a year of payments, the continuing 17 commissions do not relate to work performed. Bond's anticipated showing with the 18 proper analysis of Bond's net income, will show that Bond continued with eligibility 19 for benefits and did not steal from the SSA. To grant a new trial is consistent with the 20 purpose of the court's authority, and the avoidance of conviction for an innocent 21 person. 22 B. The Court Denied the Defendant His Right to Poll the Jury by Discharging the 23 Jury Without A Reasonable Opportunity for Defendant to Request a Poll. 24
The trial judge went directly to dismissing the jury after the reading the verdict.

25 A simple oral reading of the transcript shows that it would take no more than 25 26 seconds from the judge's beginning to the end. Contrary to the common practice of 27 28 7

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1 courts in Arizona, the court did not inquire if either party wanted the jury polled or if 2 there was anything further. The judge gave no reasonable opportunity for defendant to 3 request a poll. This is especially true in light of the trial judge just having told defense 4 counsel of her intent to issue an order to show cause for a contempt citation to defense 5 counsel and would require a written response thereafter. The defense submits that the 6 trial judge created a conflict of interest with the defendant's effective assistance of 7 counsel under the Sixth Amendment. In light of the threat and the totality of her 8 dismissing the jury quickly denied Bond the right to have the jury polled. 9 C. Bond Was Denied His Right to Counsel, a Fair Trial, and Due Process of Law, 10 When the Judge Improperly and Incorrectly Told Bond That His Testimony May 11 Incriminate Him for a Wiretap Violation of Federal Law. 12
After telling Bond's attorney to discuss the subject of Miranda warning

13 concerning possible incriminating statements of federal wiretap law, the judge later 14 questioned whether counsel and Bond discussed the matter. After counsel advised the 15 court that it had been done, the court inquired into the privileged communications 16 between counsel and Bond, to which counsel objected. After counsel did not disclose 17 privileged communication, the judge took the role as counsel or legal adviser to Mr. 18 Bond, over counsel's objection, telling him that his testimony could incriminate him. 19 As counsel objected to the judge's communication, counsel pointed out that recording 20 one's own telephone conversation is not a violation of federal wiretap law, the judge 21 declared that counsel was wrong. 18 U.S.C. § 2511(d). The court's interference with 22 the lawyer client relationship was chilling in nature, the discourse was of the nature to 23 shake or deteriorate confidence in counsel, and the stark warning was incorrect legal 24 advice. 25 The Court Violated Bond's Rights to Counsel, to Testify, and to a Fair Trial. 26 27 28 8
The court thrust its view and "warning" on the defendant, which was in the

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1 favor of the government by sua sponte wrongly suggesting he had committed some 2 other crime and the prosecutors could go to the grand jury for another indictment 3 against him. RT 3/10/05 17-23. A judge's conduct violates many rights when 4 circumstances of warning may overstep bounds. See, e.g., Webb v. Texas, 409 U.S. 95, 5 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (where trial judge singled out a sole defense 6 witness and admonished the witness at length as to the dangers of perjury and the 7 witness thereafter refused to testify on behalf of the defense, defendant was deprived 8 due process of law); a court may abuse its discretion by a warning to a witness and thus 9 violate a defendant's constitutional rights by "actively" encouraging a witness not to 10 testify, or by badgering a witness to remain silent. United States v. Arthur, 949 F.2d 11 211 (6th Cir.1991); see also United States v. Crawford, 707 F.2d 447, 449 (10th 12 Cir.1983) (noting "[s]ubstantial governmental interference with a defense witness's 13 decision to testify violates a defendant's due process rights"). A judge's admonition to a 14 witness can violate Webb if it is "threatening" and employs "coercive language 15 indicating the court's expectation of perjury." Harlin, 539 F 679, 681 (9th Cir.1976); 16 United States v. Hammond, 598 F.2d 1008 (5th Cir.1979) (holding that government 17 statement to a witness that they would have "nothing but trouble" if they testified on 18 behalf of defense requires reversal); United States v. Morrison, 535 F.2d 223 (3d 19 Cir.1976) (prosecutor who pointedly warned defense witness of the dangers of 20 testifying falsely in favor of the defendant, inducing witness to refuse to answer certain 21 questions on the ground that the answers might incriminate her, deprived defendant of 22 evidence he expected to place before the jury and therefore denied him his Sixth 23 Amendment rights); United States v. Thomas, 488 F.2d 334 (6th Cir.1973) 24 (government's threat to prosecute a witness if he chose to testify could not later be 25 corrected by mere statement by the government that they would not prosecute the 26 witness). A defendant's constitutional rights are implicated only where the prosecutor 27 28 9

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1 or trial judge employs coercive or intimidating language or tactics that substantially 2 interfere with a defense witness' decision whether to testify. See,United States v. 3 Harlin, 539 F.2d 679, 681 (9th Cir.1976); see also Davis, 974 F.2d at 187 ("[A 4 defendant's] rights are not trenched upon by mere information or advice about the 5 possibility of a perjury prosecution, but by deliberate and badgering threats designed to 6 quash significant testimony."); Blackwell, 694 F.2d at 1334 ("[W]arnings concerning 7 the dangers of perjury cannot be emphasized to the point where they threaten and 8 intimidate the witness into refusing to testify."). 9
Here the trial judge crossed the line. The warning thrust upon the defendant was

10 sua sponte, went beyond simple warning that testimony may be incriminating, 11 demanded to know privileged communications, sharply rebuked defense counsel's 12 objections to the procedure and mistaken statement of law from the judge, belittled and 13 demeaned counsel who had just stated that he had advised Bond on the topic with the 14 trial judge then assuming the role as counsel to allegedly give Bond legal advice 15 because "somebody has to," added narrative description of procedure for the 16 prosecutors to bring new charges against him with a grand jury indictment, and 17 declared that the information the judge had was enough for her to conclude that there 18 was a possibility or "probable cause" that he had committed a wiretap crime. RT 19 3/10/05 17-23. 20 Incorrect Statement of the Law by the Trial Judge. 21
The trial judge insisted, over objection of counsel, that counsel was wrong

22 about the law on wiretap violation and that, if a telephone call was interstate, the party 23 had to give notice of recording to another party to that conversation. There is no 24 violation of federal wiretap law [Title III, Omnibus Crime Control and Safe Streets 25 Act, 18 U.S.C. § 2510 et seq.] when a party to a conversation consents to the 26 recording. United States v. Diaz-Diaz, 2005 WL 3536540, 3 (1 st Cir. (Puerto Rico), 27 28 10

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1 2005) (claim of violation is "without merit"). "The statute [U.S.C. § 2511] permits the 2 taping of conversations without approval if a person who is a party to the conversation 3 gives prior consent." United States v. Font-Ramirez, 944 F.2d 42, 47 (1st Cir.1991) 4 Similarly, there is no Fourth Amendment violation of an individual whose 5 conversation is recorded with the consent of another person who is a party to the 6 conversation. Lopez v. United States, 373 U.S. 427, 438-39 (1963). 7
In this Court's prior order denying the motion for a new trial, the court

8 explained that the defendant: (1) had not asserted that he would have pursued a 9 different course had the court remained silent; (2) did not describe the substance or the 10 tape recording he withheld (marked Exhibit 102 for trial); (3) did not explain why it 11 was different in substance from the two tape recordings he did present; or (4) how the 12 decision to refrain from offering the tape resulted in an unfair trial. This Court then 13 could not conclude that the trial judge's comments interfered with Bond's right to 14 counsel, did not substantially affect his rights and therefore found the judge's actions 15 harmless. 16
First, absent the interference from the trial judge just moments before Bond

17 resumed his testimony, the defense would have proceeded by offering the tape 18 recording and it would have made a difference in the trial. The two tape recordings 19 offered at trial were recordings Bond made after he had been charged with crimes in 20 this case; recorded while represented by counsel and with advice of counsel. Exhibit 21 102 was made by Bond before he was surprised with the execution of the search 22 warrant at his home. Second, the substance of the tape recording is in the attached 23 transcript. Attachment. In that conversation, the SSA representative told Bond that his 24 income was his "net profit" calculated by his tax preparer "[o]n the Schedule SE" for a 25 self employed person, and that if his income was "[f]ive or six hundred, depending on 26 what it is, if it's six hundred dollars you need to let us know that you're working." Att. 27 28 11

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1 3-4. Bond claimed that he had been told by SSA representatives that, if his net income 2 was less than the trial work period, he did not have to report it to SSA. One of the tape 3 recordings introduced at trial included such a statement to Bond. The tape made before 4 the search warrant, exhibit 102, would have corroborated that and given more credence 5 to his defense, including that it was not just an isolated incident of the SSA advice. 6 Third, it is different from the two standard size tape recordings offered at trial by 7 appearance, substance, and fair inference. Exhibit 102 was a different size, a micro 8 cassette recording, like other tapes Bond argued had been taken during execution of 9 the search warrant, exhibit 102 was made before representation by counsel and also 10 before the search warrant execution. Fourth, the judicial conduct resulted in an unfair 11 trial. The conduct shook confidence in counsel's decisions and presentation of the 12 defense. It resulted effectively to have precluded and deprived him of evidence. The 13 tape was evidence of Bonds calls made more contemporaneous with Bond receiving 14 benefits and much less like an afterthought. As such, it would have made a difference 15 in the outcome of the trial. 16 D. The Court Erred in its Initial Instruction to the Jury. 17
The government does not dispute that the judge erred when she told the jury that

18 the indictment charged Mr. Bond with unlawful possession of a firearm and forfeiture. 19 Counts three and the forfeiture allegation had been dismissed. Yet the court advised 20 the jury: 21 22 23 24 25 26 27 28
You know very synoptically about what this case is all about, because it was set forth in your jury questionnaire. The defendant has been charged by indictment with the crimes of theft of government property, Social Security fraud, and unlawful possession of a firearm, and a forfeiture allegation concerning property. He's been charged by an indictment. The indictment is not evidence, it just contains the charges, and no inference can be drawn from the fact that the defendant was charged by indictment by the Grand Jury. RT 3/1/05 40. This initial statement to the jury by the judge was followed almost immediately by the judge directing defense counsel to introduce himself and his client.

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1 Thus, the jury had just been told with the judicial authority face-to-face that not only 2 was Mr. Bond charged with fraud and theft, as they may have read in the court's 3 Confidential Juror Questionnaire.3 4
There were two pistols found during the execution of the search warrant. The

5 pistols were not used, handled, or threatened to be used by Mr. Bond during the search 6 and they were not alleged to be associated in any way with the charges related to 7 disability payments for Mr. Bond. Agent Turk investigated and found that in the 8 separation of Mr. Bond from his ex-wife, the ex-wife obtained an order of protection. 9 Mr. Bond protested the order but it was upheld on appeal. The order applied to Mr. 10 Bond for six months. Agent Turk wrongly concluded it applied to Mr. Bond for one 11 year and Turk concluded that Mr. Bond was, therefore, a prohibited possessor. Thus, 12 the government sought and obtained charges in the original and superseding indictment 13 for illegal possession of a firearm and forfeiture of the firearm(s). In short, they had no 14 connection whatsoever to the disability payments or insurance business of Mr. Bond. 15 The improper charges were dismissed before trial, but the judge created the first 16 impression for the jury of Mr. Bond by wrongly describing the charges to include 17 illegal possession of firearms, a crime of violence, and moments later directing their 18 eyes at him for introduction. Thus, he began the trial with the burden of overcoming 19 that first impression. 20
As the defendant has pointed out in his original motion, when he moved for a

21 mistrial, the government suggested that any error could be cured within instruction and 22 the court agreed. The defendant still submits that the attempt to cure was ineffective at 23 best, but realistically it aggravated the problem. See, Motion for New Trial at 5 (Court 24 told jury fraud and theft were "correct" charges and anything else they did not have to 25 26 27 28
The defendant cannot provide a copy of the questionnaire at this time because the court provided copies for the purposes of jury selection only. The questionnaires were returned to the clerk and counsel is unaware if any are still in existence. On
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1 find him guilty or not guilty because it was "not an issue in this case." It gave court 2 approval of fraud and theft charges and suggested that unlawful firearms charge was 3 an issue somewhere else.) 4
The government suggests that this error was harmless. The government's claim

5 appears to be that the jury already knew the charges from the juror questionnaire. As 6 noted above, the error happens in the formal courtroom with words spoken directly 7 from a a federal judge to the jury, followed swiftly by a direction that of the defense 8 attorney and his client to stand and introduce themselves. This Court may be able to 9 look at the questionnaires, or at least a sample of a judge Silver's form on the Internet 10 District Court web site, to get an idea if it bears the same resemblance of impact or 11 significance as words spoken by the judge in the courtroom. The government does not 12 direct of this Court to any place in the record to show whether any or all of the jurors 13 read the statement of the case, understood it, or even remember it and how long before 14 the trial where the questionnaires read and answered. Second, the government suggests 15 that the curative instruction corrected the error. The reasons stated above the defense 16 contends that is not correct. Third, the government suggests that there was also 17 evidence that supported count three that was a "document the government noticed it 18 would be using as evidence of prior bad acts" and the document would be used in 19 government's case. Govt Resp at 9. Unfortunately, the government does not identify 20 what document it refers to at this time. Since defense counsel does not know what 21 document is being referred to at this time, and counsel also knows that the defense was 22 provided many proposed government trial exhibits but told by the prosecution that not 23 all would be used during the case in chief, the argument is far too elusive to be given 24 any weight, much less to say it would be harmless beyond reasonable doubt. 25 27 28 14
The government argued, and this Court considered in its order, that defendant

26 "mentioned the firearm charge himself during his testimony and his counsel addressed

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1 it in some detail during cross-examination of a government witness." (Response at 2 Citing RT 3/11/05 at 20-23.) The government did not offer reference to the record to 3 support a claim that the defendant "mentioned the charge himself during his 4 testimony," and the defendant contends that was a misrepresentation and is not 5 supported by the record. It was the government that introduced testimony from Agent 6 Turk on the last day of trial that he had information that Mr. Bond "had some weapons 7 inside the home" about the time of the search. That testimony was elicited the second 8 time Agent Turk testified, which was at the rebuttal stage of trial. RT 3/11/05 at 11. 9 So, the defendant was faced with the judge's error at the beginning of the trial which 10 created a first impression that Bond had been charged in this Court, or elsewhere, with 11 unlawful possession of firearms, and the government ending the trial with Agent 12 Turk's testimony that he had "information" that Bond had "some weapons inside the 13 home." Defense counsel asked if pistols were found in the home and how many [two] 14 in an effort to minimize the harm already done to him by the suggestions of risks of 15 danger he posed. RT 3/11/05 at 21.4 The court allowed the government to add such 16 evidence to the image of bad character while cutting off defense efforts to call 17 character witnesses. Any error in reference to the weapons was not invited by Bond. 18 20 21 22 23 24 25 26 27 28
Bond's position was that he possessed tape recordings of telephone conversations with SSA representatives that were exculpatory before the search warrant execution, but taken from his home without his permission. Agent Turk denied that such tapes were taken. Bond proffered evidence that he passed a polygraph examination and proffered photographs to show that the area where the tapes were kept had been changed from the search. The court denied admission of the evidence. Bond introduced evidence that the search warrant was executed by a multitude of agents and officers, including a SWAT team that broke open the office door near the area where he kept the tapes. The court then allowed the government to offer evidence, over defense objection, that the mode of execution was justified on the theory of safety reasons based on information of security risks posed by the defendant. RT 3/10/05 201-206.
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The court erroneously presented Bond initially to the eyes of the jury as an

19 unlawful possessor of firearms. The court's error was not cured by the language used.

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1 And the initial image was compounded by the government's introduction that Bond 2 possessed weapons, not by Bond addressing the dismissed charge in detail in his own 3 testimony or during cross-examination of Agent Turk. 4 E. The Government Did Not Establish the Proper Foundation for Numerous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Exhibits and the Court Erred in Admitting Them as Trial Exhibits. Bond argued in the motion for the new trial that the government did not established adequate foundation for numerous exhibits and court aired in admitting them as travel exhibits, for example it exhibits 42 and 39. Exhibit 42 was purportedly an advertisement to sell bonds business and was offered as an "adoptive admission." Exhibit 39 was a group of money orders. The government also failed to lay an adequate foundation for Exhibit 31, alleged to be invoices for sales of supernatural products somehow attributable as work or income of the defendant. The government laid no more foundation than to ask the agent if he recognized the exhibit as "documents that were taken during the search warrant of Mr. For Greeley is home?" RT 3/2/05 168-69. The court admitted the exhibit over defendant's objection. The government failed to lay an adequate foundation for exhibit 46, an unsigned, undated, typed document, the identification, intent, or purpose for which was never explained. The government laid no more foundation and to ask the custodian of bonds Social Security file if there was a copy of the document in that file, to which she answered in the negative, and to ask the agent if it was "a document that you found in the surge of Mr. For Greeley is' home?" RT 3/2/05 78, 181-82. The court admitted the exhibit over defendants multiple objections. The government failed to lay an adequate foundation for Exhibit 41, purportedly a rejection letter from a Miss Pam Hall after "some attempt by Mr. Bond, apparently, to market [a] product." RT 3/8/05 18. Government laid no more foundation and to ask if the agent recognized it as a document seized from the defendant's home during the

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1 search warrant, it related to a product called Razor Slick, and it was dated the in 2 October 1997. The court admitted the exhibit before letting defense counsel object. RT 3 3/8/05 17-18. 4
The government failed to lay an adequate foundation for Exhibit 35, purportedly

5 a letter of the work activity as investigative services provided by defendant in 1994. 6 The government laid no more foundation and to ask if it was a one-page exhibit found 7 during the search of defendant's home and whether it related to defendant's work 8 activity in 1994. Agent Turk volunteered in his answer that it included a receipt for 9 certified mail. RT 3/8/05 18-19. The court admitted the exhibit over defendant's 10 objection. The prosecutors questions in the agents testimony then went on to cover 11 indications and appearances from the document. RT 3/8/05 19-21. 12
The Government failed to lay an adequate foundation for Exhibit 37,

13 purportedly an advertisement to sell a business of Razor Slick. In addition asking if it 14 was a document seized during the search warrant, the government asked the agent 15 concludes Ray questions about whether it related to the business of razors select, and 16 marketing or selling of that business in 1994. After multiple defense objections and 17 the defense pointing out that the name was not the same and there was no identification 18 of who the signature belonged to or what the name was, the court allowed further 19 questions to lay foundation. The government asked further questions but did not 20 satisfy the objections. However, the court admitted the exhibit. RT 3/8/05 21-23. 21
The defendant was significantly harmed by the continual admission of exhibits

22 without adequate foundation. The government was permitted to create a mountain of 23 unreliable evidence and innuendos which created false impressions for the jury and an 24 insurmountable task for the defense, especially in the time constraints imposed by the 25 court on the defense. 26 FC. The Defendant Could Not Fairly Present His Case and Testify 27 28 17

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1

Assistant United States Attorney Hamilton-Burns commented at the end of the

2 defendant's first one-half day of testimony, "... I'd like to record to reflect the manner 3 in which Mr. Bond is answering questions is very slow, there is a lot of hesitation, 4 there are a lot of grimaces on his face indicating an inability to grasp the question at 5 hand. I'd like the record to reflect that in the event that itself is the subject of rebuttal 6 by the government." RT 3/9/05 143. At another point in the proceedings as Mr. Bond 7 turned and was exiting the witness stand, he stumbled on the step and fell flat on his 8 face onto the floor. Although someone asked if he was okay and he responded as he 9 lifted himself from the floor that he was okay or would be all right, counsel cannot find 10 this recorded in the official record. Trial had recessed, the jury had left the courtroom, 11 but court personnel and counsel were present and observed this event. 12
Bond has contended to this Court that he was not permitted to present a fair

13 defense. The defendant was prevented from adequately assisting in the preparation of 14 his defense due to the broken ankle before trial, as well as the pain and medication 15 accompanying it. Furthermore, the pain and medication significantly prejudiced him in 16 the presentation of his defense in court. 17
In the original motion for new trial Bond described in significant detail the

18 injury to his ankle in the incapacity resulting therefrom. He sought a 30-day 19 continuance in the court gave him a 21-day continuance. He was unable to adequately 20 review records with his counsel that were in the possession of the government and 21 evaluate them for proper presentation to the jury. After the government gave notice 22 that it intended to call an accountant to introduce charts and summarize evidence, he 23 sought funds for a similar witness for the defense, but the request was denied. Since 24 trial, Bond has reviewed evidence and scrutinized it. He has been able to sort through 25 references in government's exhibits to find that the actual number of clients he had 26 represented in the records introduced by the government was relatively few (192) for 27 28 18

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1 time frame of six or more years in the records, and compared to the appearance created 2 by the records with often repeating clients identified by numbers rather than names. 3 Bond has done his best to demonstrate his findings in a chart, Attachment A, and 4 shows that the records actually support his statements and testimony that he only 5 averaged about one client a week. 6
Most importantly, Bond's credibility was on the line and his trial conduct, while

7 on medication, substantially impacted his credibility. As noted in the Motion for a 8 New Trial, Bond took an excessive amount of Ativan and Vicodin to deal with the 9 increasing pain during trial. The medication had an effect on his ability to testify, as 10 observed and described by the AUSA on the record. The Physician's Desk Reference 11 supports Bond's contention. "Hydrocodone [Vicodin] tablets, like all narcotics, may 12 impair the mental and/or physical abilities required for the performance of potentially 13 hazardous tasks such as driving a car or operating machinery[.]" PDR 59th ed. (2005) 14 p.526-27. Adverse reactions include drowsiness, mental clouding, and impairment of 15 mental and physical performance. Id. Adverse reactions of Ativan include dizziness, 16 weakness, and unsteadiness. Overdosage can manifest in confusion and somnolence. 17 19
This was more than mere trial preparation, it went to the very heart of the trial

18 itself, the fairness of the trial, and the integrity of the verdict.
After allowing the government a continuous attack on defendant's character

20 through introduction of other alleged bad acts under Rule 404(b), impeachment with a 21 prior misdemeanor conviction and an alleged but denied specific instance of untruthful 22 conduct under Rule 608, the court arbitrarily deprived the defendant of half of his 23 available witnesses for defendant's truthfulness. After the defendant testified, Judge 24 Silver asked the nature of expected testimony, commented that character was not an 25 issue except character for truthfulness, and asked how many witnesses the defense had, 26 to which counsel replied "four." Judge Silver replied "You can have two and that's it." 27 28 19

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1 (RT 3/10/05 196-98.) Rule 608 permits the court to control the mode or order of 2 witnesses testifying. The court limited Bond in his time and testimony, and limited him 3 to merely two character witnesses. There was no such limit place on the government, 4 who had the advantage of going first and exceeding its estimate of time needed for 5 trial. The ruling precluded him from calling a nephew, his sister, and an associate to 6 testify to his character, having known him a very long time. And the associate, also a 7 customer, could have confirmed that there was never any followup on his insurance to 8 continue the policy. It was an abuse of discretion to restrict the defense from 9 supporting witnesses, especially with two character witnesses testifying so quickly. 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20
__/s TimothyC. Holtzen Timothy C. Holtzen Attorney for Defendant CONCLUSION Based on the foregoing, the defendant moves this Court to reconsider the

13 motion for a new trial and to grant a new trial.
RESPECTFULLY SUBMITTED this 9 th day of January 2006.

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